Fundamental rights in India

The development of such constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (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).[1]

In 1919, the Rowlatt Act gave extensive powers to the British government and police and allowed indefinite arrest and detention of individuals, warrantless 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 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 defence of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom.[2] Committing themselves to socialism in 1936, the Congress leaders took examples from the Constitution of the Soviet Union, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.

The task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives. The Constituent Assembly first met on 9 December 1946 under the presidency of Dr. Sachidanand. Later, Dr. Rajendra Prasad was made its president. 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.[3] 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.

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 recognised and protected by the State.[4][5] 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.[6]

All people, irrespective of race, religion, caste or sex, have been given the right to petition directly the Supreme Court or 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".[7] In some cases, High Court judges have acted suo moto 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 emphasise 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.[8] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.[9]

Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals.[10] 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[11] that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Since the fundamental rights can be altered only by a constitutional amendment, their inclusion is a check not only on the executive branch but also on the Parliament and state legislatures.[12]

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 that go against the rights given in Article 19. The President may by order suspend the right to move the court for the enforcement of other rights as well.

The right to equality is an important right provided 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 the law: Article 14 of the constitution guarantees that all people shall be equally protected by the laws of the country. It means that the State[5] will treat people in the same circumstances alike. This article also means that individuals, whether citizens of India or otherwise shall be treated differently if the circumstances are different.
• Social equality and equal access to public areas: Article 15 of the constitution states that no citizen of India shall be discriminated on the basis of religion, race, caste, sex or place of birth. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats, 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 citizen in the matters of employment. All citizens can apply for government jobs, however, there are some exceptions. The Parliament may enact a law stating that certain jobs can be filled only 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 that 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.[9]
• Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. The practice of untouchability is an offence 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, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition".[13] The Supreme Court, on 15 December 1995, upheld the validity of such awards.

The Constitution of India contains the right to freedom, given[14] in articles 19, 20, 21A, and 22, and with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. It is a cluster of four main laws. The right to freedom in Article 19 guarantees the following six freedoms: all people have the right to go anywhere in their country.

• Freedom of speech and expression, on which the State can impose reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.[15]
• 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 or co-operative societies on which the State can impose reasonable restrictions in the interest of public order, morality and the sovereignty and integrity of India.
• Citizens have the freedom to move freely throughout India, although reasonable restrictions can be imposed on this right in the public's interest. For example, to control an epidemic, restrictions on movement and travel can be imposed.
• Freedom to reside and settle in any part of the territory of India, 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.[16] Article 370 restricted citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.[17] Article 370 is no longer applicable in the state of Jammu & Kashmir from 6 August 2019.

• Freedom to practice any profession or to carry on any occupation, trade or business. But the state may impose reasonable restrictions in the public's interest through statute. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practising any profession or carrying on any trade.

Article 20 gives protection in respect of conviction for offences.

Article 21 gives the right to life, personal liberty and the right to die with dignity (passive euthanasia).

Article 21A gives free education to all children of the age of six to fourteen years such manner as the State may, by law, determine.

Article 22: Protection against arrest and detention in certain cases.

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.

Courts in India have mandated that some of these rights are applicable to non-human entitles which have been given the status of the "legal person" and humans have the legal duty to act as "loco parentis" towards animals welfare like a parent has towards the minor children (Punjab and Haryana High Court in 2018 cow-smuggling case), a deity as a legal person is entitled to the rights (Supreme Court in 2018 entry of women to Sabarimala granted Lord Ayyappan right to privacy), rivers are legal person (Uttarakhand High Court mandated that the river Ganges and Yamuna have right to be protected against pollution caused by humans).[18]

Child labour and Begar (unfree labour) is prohibited under Right against exploitation.

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 labour), and the abolition of employment of children below the age of 14 years in dangerous jobs like factories, mines, etc. 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. Human trafficking for the purpose of the 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.

Right to freedom of religion, 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 that 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 that may be associated with religious practice, or providing for social welfare and reform.

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 a 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 duress (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 jeopardy, 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 Carta.
• Protection of life and personal liberty is also stated under the 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 be disputed only if that person has committed a crime. However, the right to life does not include the right to die and hence, suicide or any attempt thereof, was 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.[20] In 1996, another Supreme Court ruling nullified the earlier one.[21] But with the passage of the Mental Healthcare Bill 2017, attempted suicide has been decriminalised.[22] "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.[23]
• In 2002, through the 86th Amendment Act, Article 21A 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.[24] Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008.[25]
• 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 lawyer of his choice. Also, an arrested citizen has to be brought before the nearest magistrate 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 detention, 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 of India guarantees every single citizen of India has both rights to education and cultures. The Constitution also provides special measures, to protect the rights of the minorities. Any community that 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 the 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. The right to administer does not mean that the state cannot interfere in case of maladministration.

In a precedent-setting judgment in 1980, the Supreme Court held that the state can 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 judgment delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could be only 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 (Articles 32 to 35) empowers the citizens to move to a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, any citizen can ask the court to see if it is according to the provisions of the law of the country by lodging a public interest litigation. If the court finds that it is not, the person must be freed. This procedure of asking the courts to preserve or safeguard the citizen's fundamental rights can be done in various ways. The courts can issue various kinds of writs protecting the rights of the citizens. These writs are:

• habeas corpus
• mandamus
• Writ of Prohibition
• quo warranto
• certiorari

This allows a citizen to move to court if they believe that any of their Fundamental Rights have been violated by the state. Article 32 is also called the citizens right to protect and defend the constitution as it can be used by the citizens to enforce the constitution through the judiciary. Dr. B. R. Ambedkar declared the right to constitutional remedies "the heart and soul" of the Indian constitution. When a national or state emergency is declared, this right is suspended by the central government

The right to constitutional remedies is present for enforcement of fundamental rights.

The right to privacy is an intrinsic part of Article 21 (the Right to Freedom) that protects the life and liberty of the citizens.

The right to privacy is the newest right assured by the Supreme Court of India. It assures the people's data and personal security

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 thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour (a crime). They also protect cultural and educational rights of religious and linguistic minorities by allowing them to preserve their languages and also establish and administer their own education institutions. They are covered in Part III (Articles 12 to 35) of the Constitution of India

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. It protects the inner sphere of the individual from interference from both state, and non-state actors and allows individuals to make autonomous life choices. On 24 August 2017 the Supreme Court of India[26] ruled that:

"Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution,"

— Supreme Court

The fundamental rights have been revised for many reasons. Political and other groups have demanded that the right to work, 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,[27] though these provisions have been enshrined in the directive principles of state policy.[28] The right to freedom and personal liberty has a number of limiting clauses, and thus has been criticised for failing to check the sanctioning of powers often deemed "excessive".[27] 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), Armed Forces (Special Powers) Act 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.[27] The phrases "security of State", "public order" and "morality" are of wide implication. 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.[27] The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.[29][30]

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.[27] 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.[31] 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. In 2014, India had improved marginally to a rank of 85.[32][33] 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.[9]

As per Article 19 of Part III of the Indian constitution, the fundamental rights of people such as freedom of speech and expression, gathering peaceably without arms and forming associations or unions shall not effect the interests of the sovereignty[34] and integrity of India but not unity of India. The words sovereignty and integrity are the qualities to be cultivated/emulated by Indian people as urged by the Indian constitution but not used related to the territory of India. Article 1 of Part 1 of the Indian constitution, defines India (Bharat) as a union of states. In nutshell, India is its people not its land as enshrined in its constitution.

Since speedy trial is not the constitutional right of the citizens, the cases involving violations of fundamental rights take inordinate time for resolution by the Supreme Court which is against the legal maxim 'justice delayed is justice denied'.[35]

Changes to the fundamental rights require a constitutional amendment, 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 in support of the amendment shall not be less than the absolute majority of the total members of a house – whether the Lok Sabha or Rajya Sabha.

While deciding the Golaknath case in February 1967, Supreme Court ruled that the Parliament has no power to curtail the fundamental rights. They were made permanent and sacrosanct reversing the Supreme Court's earlier decision which had upheld Parliament's power to amend all parts of the Constitution, including Part III related to fundamental rights. Up until the 24th constitutional amendment in 1971, the fundamental rights given to the people were permanent and can not be repealed or diluted by the Parliament. The 24th constitutional amendment introduced a new Article 13(4) enabling Parliament to legislate on the subjects of Part III of the constitution using its constituent powers per Article 368 (1). In 1973, the 13 member constitutional bench of the Supreme Court also upheld with majority the validity of the 24th constitutional amendment. However, it ruled that the basic structure of the constitution which is built on the basic foundation representing the dignity and freedom of the individual, can not be altered. This is of supreme importance and cannot be destroyed by any form of amendment to the constitution.[36] Many constitutional amendments to Part III of the constitution were made deleting or adding or diluting the fundamental rights before the judgement of Golaknath case (Constitutional amendments 1, 4, 7, and 16) and after the validity of 24th constitutional amendment is upheld by the Supreme Court (Constitutional amendments 25, 42, 44, 50, 77, 81, 85, 86, 93, and 97).

Right to education

The right to education at elementary level has been made one of the fundamental rights in 2002 under the 86th Amendment of 2002.[24] However this right was brought in to implementation after eight years in 2010. On 2 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.[41] The Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present. This act provides for the appointment of teachers with the requisite entry and academic qualifications.

Former Prime Minister Dr. Manmohan Singh announced the implementation 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 percent 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.250 billion to the States for implementing the Act. The Centre has approved an outlay of Rs.150 billion 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.

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