Fundamental Rights

▸ Rights are claims of social life and they help individuals to develop their personality. Some of the Fundamental Rights provide protection only against the state action and do not safeguard against the action of private individuals.
▸ The Fundamental Rights are guaranteed and protected by the Constitution to all persons without any discrimination.
▸ The Fundamental Rights have been described in Articles 12-35, Part III of Indian Constitution.
▸ Originally, Fundamental Rights were seven in number viz
▸ Right to Equality.
▸ Right to Freedom.
▸ Right against Exploitation.
▸ Right to Freedom of Religion.
▸ Cultural and Educational Rights.
▸ Right to Property.
▸ Right to Constitutional Remedies.

Right to Property

The Right to Property (Article 31) was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article-300A in Part XII of the Constitution.
▸ Article 13 Laws inconsistent with or in derogation of the Fundamental Rights that are
▸ All laws in force in the territory of India immediately before the commencement of the Constitution, and they are inconsistent with the provisions of this part, up to an extent such inconsistency, be void.
▸ The state shall not make any law, which takes away or abridges the rights conferred by this part.
▸ It provides for the doctrine of judicial review.
▸ Constitutional Ammendment is not a law and hence cannot be challenged.

Right to Equality (Article 14-18)

Article 14 Equality before law and equal protection of laws. It 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. This provision confers rights to all persons whether citizens or foreigners. The concept of equality before law is an element of the concept of 'Rule of law'- propounded by AV Dicey, the British Jurist. The rule of equality before law is not absolute. Some of the exceptions are
▸ The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.
▸ No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
▸ No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.
▸ No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office, until the expiration of 2 months next after notice delivered to him.
Article 15 Prohibition of discrimination on certain grounds. It says that the state shall not discriminate against any citizen on grounds of religion, race, caste, sex or place of birth. This provision prohibits discrimination both by state and private individuals. There are three exceptions to this general rule of non-discriminations
▸ Any special provision for women and children.
▸ Advancement of any socially and educationally backward classes of citizens.
▸ Special provisions for any socially and educationally backward classes or Scheduled Castes and the Scheduled Tribes. Regarding their admission to educational institutions, including private educational institutions.
Article 16 Equality of opportunity in public employment. It provides equality of opportunity for all citizens in matters of employment or appointment to any office under the state.
▸ It does not bound state for prescribing the necessary qualification and recruitment tests for government services, certain posts may be reserved for the resident of a particular state.
▸ It also provides for the reservation of seats in promotion for the Scheduled Castes and Scheduled Tribes.
Article 17 Abolition of untouchability. It abolishes untouchability and forbids its practice in any form.
▸ The term 'untouchability' has not been defined either in the Constitution or in the Act (Protection of Civil Rights Act, 1955)
Article 18 Abolition of titles. It abolishes titles and makes four provisions in that regard. 1. It prohibits the state from conferring any title (except a military or academic distinction) on any body, whether a citizen or a foreigner. 2. It prohibits a citizen of India from accepting any title from any foreign state. 3. A foreigner holding any office of profit or trust under the state, cannot accept any title from any foreign state without the consent of the President. 4. No citizen or foreigner holding any office of profit or trust under the state is to accept any present, emolument or office from or under any foreign state without the consent of the President.

Right to Freedom (Articles 19-22)

Article 19 It guarantees to all citizens the six rights. These are 1. Right to freedom of speech and expression. 2. Right to assemble peacefully and without arms. 3. Right to form associations or unions or co-operatives. 4. Right to move freely throughout the territory of India. 5. Right to reside and settle in any part of the territory of India. 6. Right to practice any profession or to carry on any occupation, trade or business.
▸ Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
▸ These 6 rights are protected against only state action and not private individuals.
Article 20 Protection in respect of conviction for offences. It grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction.
1. No Ex-Post-Facto Law No person shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, (ii) nor be subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the Act.
2. No Double Jeopardy No person shall be prosecuted and punished for the same offence more than once.
3. No Self-Incrimination No person accused of any offence shall be compelled to be a witness against himself.
Article 21 Protection of life and personal liberty. It declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens. The Supreme Court has expanded the scope of Right to Life in its various judgments and declared the following rights as part of Article 21. (a) Right to live with human dignity. (b) Right to decent environment including pollution free water and air and protection against hazardous industries. (c) Right to livelihood. (d) Right to privacy. (e) Right to shelter. (f) Right to health. (g) Right to free education upto 14 years of age. (h) Right to free legal aid. (i) Right against solitary confinement. (j) Right to speedy trial. (k) Right against handcuffing. (l) Right against inhuman treatment. (m) Right against delayed execution. (n) Right to travel abroad. (o) Right against bonded labour (p) Right against custodial harassment. (q) Right to emergency medical aid (r) Right to timely medical treatment in government hospital. (s) Right not to be driven out of a state. (t) Right to fair trial. (u) Right of prisoner to have necessities of life. (v) Right of women to be treated with decency and dignity. (w) Right against public hanging. (x) Right to hearing. (y) Right to information. (z) Right to reputation.
Right to Education
Article 21A declares that the state shall provide free and compulsory education to all children of the age of 6 to 14 years in such a manner as the state may determine. Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education. Article 22 Protection against arrest and detention
▸ No person, who is arrested shall be detained in custody without being informed of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practioner of his choice.
▸ Every person, who is arrested and detained in custody is to be produced before the nearest Magistrate within a period of 24 hours of arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and such person cannot be detained in custody beyond that period without the authority of a Magistrate.
▸ There are some exception against these safeguards.
▸ It is not available to an enemy alien and a person arrested or detained under a law providing for preventive detention (detention of a person without trial).
▸ The detention of a perosn cannot exceed three months under Preventive Detention Law.

Right Against Exploitation (Articles 23-24)

Article 23 Prohibition of traffic in human beings and forced labour. It prohibits traffic in human beings, 'Begar' (forced labour) and other similar forms of forced labour.
Article 24 It prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But, it does not prohibit their employment in any harmless or innocent work.
▸ The Child Labours (Prohibition and Regulation) Act, 1986, is the most important law in this direction.

Mandal Commission

▸ In 1979, the Morarji Desai Government appointed the Backward Classes Commission under the Chairmanship of BP Mandal, a Member of Parliament, to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement. The commission submitted its report in 1980 and recommended 27%, jobs reservation for Other Backward Classes (OBCs).
▸ The advanced sections among the OBCs (the Creamy Layer) should be excluded from the list of beneficiaries of reservation.

Right to Freedom of Religion (Articles 25-28)

Article 25 Freedom of conscience and right to freely profess, practice and propagate religion. It says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The state is empowered by law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.
Article 26 Freedom to Manage Religious Affairs Every religious denomination or any of its section shall have the following rights (a) Right to establish and maintain institutions for religious and charitable purposes; (b) Right to manage its own affairs in matters of religion; (c) Right to acquire and own movable and immovable property; and (d) Right to administer such property in accordance with law.
Article 27 Freedom from taxation for promotion of a religion. It lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
Article 28, Freedom from attending religious instruction. No religious instruction shall be provided in any educational institution whollymaintained out of state funds. However, this provision shall not apply to an educational institution administered by the state, but established under any endowment or trust, requiring imparting of religious instruction in such institution.

Fundamental Rights to Citizens and Foreigners

Fundamental Rights available only to citizens and not to foreigners Fundamental Rights available to both citizens and foreigners (except enemy aliens) 1. Prohibition of discrimination on grounds of religion, race, sex or place of birth (Article 15). Equality before law and equal protection of laws (Article 14). 2. Equality of opportunity in matters of public employment (Article 16). Protection in respect of conviction for offences (Article 20). 3. Protection of six rights regarding freedom of (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession(Article 19). Protection of life and personal liberty (Article 21). 4. Protection of language, script and culture of minorities (Article 29). Right to elementary education (Article 21 A). 5. Right of minorities to establish and administer educational institutions (Article 30). Protection against arrest and detention in certain cases (Article 22). — Prohibition of traffic of human beings and forced labour (Article 23) Prohibition of employment of children in factories etc. (Article 24) Freedom of conscience and free profession, practice and propagation of religion (Article 25) Freedom to manage religious affairs (Article 26) Freedom from payment of taxes for promotion of any religion (Article 27)

Cultural and Educational Rights (Articles 29-30)

Article 29 Protection of interests of minorities. It provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. Further, no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste or language.
Article 30 Right of Minorities to Establish and Administer Educational Institutions : Grants the following rights tominorities,whether religious or linguistic (a) All minorities shall have the right to establish and administer educational institutions of their choice. (b) ln granting aid, the state shall not discriminate against any educational institution managed by a minority. The compensation amount fixed by the state for the compulsory acqusition of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by 44th Amendment Act of 1978 to protect the right of minorities in this regard. The act deleted the Right to Property as a Fundamental Right (Article 31).
▸ The right under Article 30 also includes the right of a minority to impart education to its children in its own language.

Right to Constitutional Remedies (Article 32)

▸ Dr BR Ambedkar said, Article 32 is the heart and soul of the Constitution.
▸ Supreme Court ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution. Under Article 32, Supreme Court and Article 226, High Court can issue writs of various forms;
▸ Habeas Corpus It is a Latin term which literally means, 'to have the body of,'. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal.
▸ Mandamus It literally means 'we command'. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
▸ Quo-warranto In the literal sense, it means ''by what authority or warrant''. It is issued to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.
▸ Prohibition Literally means 'to forbid'. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that, it does not possess. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office. Thus, unlike mandamus that directs activity, the prohibition directs inactivity. The writ of prohibition can be issued only against judicial and Quasi- Judicial authorities. It is not available against Administrative Authorities, Legislative Bodies and private individuals or bodies.
▸ Certiorari In the literal sense, it means, 'to be certified' or 'to be informed'. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
Limitations on the Enforcement of Fundamental Rights
▸ Parliament has the power to modify the application of the Fundamental Rights to the members of the Armed Forces, Police Forces or Intelligence Organisations so as to ensure proper discharge of their duties and maintenance of discipline among them (Article 33).
▸ Certain Fundamental Rights guaranteed by the Constitution may remain suspended, while a Proclamation of Emergency is made by the President under Article 352.
▸ Article 34 Restriction on Rights conferred by this Part while martial law is in force in any area.
▸ Article 35 Legislation, to give effect to the provisions of this part.

Directive Principles of State Policy

▸ The Directive Principles of State Policy are enumerated in Part IV of the Constitution from Articles 36 to 51.
▸ Dr BR Ambedkar, described these principles as novel feature of the Constitution.
▸ The DPSP alongwith Fundamental Rights contain the philosophy of the Constitution and is the soul of the Constitution.

Features

▸ These are constitutional instructions to the state in legislative, executive and administrative matters.
▸ It resembles the 'Instrument of Instructions' enumerated in the Government of India Act of 1935.
▸ They constitutes the comprehensive economic, social and political programme for a modern state.
▸ They promote social and economic democracy. They embody the concept of a welfare state'.
▸ These are fundamental in the governance of the country.
▸ They are non-justiciable.
▸ They apply to both Union and State Governments and all other authorities coming under the definition of 'State'.

Classification

▸ The Constitution does not contain any classification of directive principles. However, on the basis of their content and direction, they can be classified into three broad categories, viz socialistic, Gandhian and liberal-intellectual.

Socialistic Principles

These principles reflect the ideology of socialism. They lay down the framework of a democratic socialist state, aim at providing social and economic justice and set the path towards welfare state.
▸ Article 38 To promote the welfare of the people by securing a social order permeated by justice-social, economic and political and to minimise inequalities in income, status, facilities and opportunities.
▸ Article 39 To secure (a) the right to adequate means of livelihood for all citizens; (b) the equitable distribution of material resources of the community for the common good; (c) prevention of concentration of wealth and means of production; (d) equal pay for equal work for men and women; (e) preservation of the health and strength of workers and children against forcible abuse; and (f) opportunities for healthy development of children.
▸ Article 39 (A) To promote equal justice and to provide free legal aid to the poor.
▸ Article 41 To secure the right to work, education and to public assistance in cases of unemployment, old age, sickness and disablement.
▸ Article 42 To make provision for just and humane conditions for work and maternity relief.
▸ Article 43 To secure a living wage, a decent standard of life and social and cultural opportunities for all workers.
▸ Article 43 (A) To take steps to secure the participation of workers in the management of industries.
▸ Article 47 To raise the level of nutrition and the standard of living of people and to improve public health.

Gandhian Principles

These principles are based on Gandhian ideology. They represent the programme of reconstruction enunciated by Gandhi during the National Movement. In order to fulfil the dreams of Gandhi, some of his ideas were included as Directive Principles.
▸ Article 40 To organise Village Panchayat to function as units of self government.
▸ Article 43 To promote cottage industries on an individual or co-operation basis in rural areas.
▸ Article 46 To promote the educational and economic interests of SCs, STs and other weaker sections of the society and to protect them from social injustice and exploitation.
▸ Article 47 To prohibit the consumption of intoxicating drinks and drugs which are injurious to health.
▸ Article 48 To prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds.
Liberal-Intellectual Principles
The principles included in this category represent the ideology of liberalism.
▸ Article 44 To secure for all citizens a uniform civil code throughout the country.
▸ Article 45 To provide early childhood care and education for all children until they complete the age of 6 years.
▸ Article 48 To organise agriculture and animal husbandry on modern and scientific lines.
▸ Article 48 (A) To protect and improve the environment and to safeguard forests and wildlife.
▸ Article 49 To protect objects, places and monuments of historic interest and national importance.
▸ Article 50 To separate the judiciary from the executive in the public services of the state.
▸ Article 51 To promote international peace and security and to maintain just and honourable relations between nations; to foster respect for international law and treaty obligations and to encourage settlement of international disputes by arbitration.

Distinction between Fundamental Rights and Directive Principles

These are negative as they prohibit the state from doing certain things. These are positive as they require the state to do certain things. These are justiciable, i.e. they are legally enforceable by the courts in case of their violation. These are non-justiciable, i.e. they are not legally enforceable by the courts for their violation. They aim at establishing political democracy in the country. They aim at establishing social and economic democracy in the country. These have legal sanctions. These have moral and political sanctions. They promote the welfare of the individual. Hence, they are personal and individualistic. They promote the welfare of the community. Hence, they are societarian and socialistic. The courts are bound to declare a law violative of any of the Fundamental Rights as unconstitutional and invalid. The courts cannot declare a law violative of any of the Directive Principles as unconstitutional and invalid. However, they can uphold the validity of a law on the ground that it was enacted to give effect to a directive.

New Directive Principles

Article 39A To provide free legal aid to the poor (42nd Amendment Act, 1976). Article 39(f) To secure opportunities for healthy development of children (42nd Amendment Act, 1976). Article 43A To take steps to secure the participation of workers in the management of industries. (42nd Amendment Act, 1976). Article 43 B To promote professionally run co-operative societies added by the 97th Constitutional Amendment Act, 2011. Article 48 A To protect and improve the environment and to safeguard forests and wild life. (42nd Amendment Act, 1976). Article 38(2) It added one more Directive Principle, which requires the state to minimise inequalities in income status, facilities and opportunities under Article 38. (44th Amendment Act, 1978)

Directives Outside Part IV

▸ Apart from the directives included in part IV, there are some other Directives contained in other parts of the Constitution.
▸ Claims of members of Scheduled Castes and Scheuled Tribes will be taken into consideration, consistent with the maintenance of efficiency in administration, in the appointment to Public Services. (Article 335).
▸ It is the duty of every state and local authority to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to minority classes (Article 350 A).
▸ It shall be the duty of the Union to promote Hindi language amongst the people of India, so that it may serve as a medium of expression for all the elements of the composite culture of India (Article 351).

Fundamental Duties

▸ The Fundamental Duties in the Constitution serve as a reminder to the citizens that while enjoying their rights, they should also be conscious of their duties towards the country. We have borrowed Fundamental Duties from the Constitution of former Soviet Union.
▸ Originally, Constitution did not contain Fundamental Duties. In 1976, the FDs of citizens were added by 42nd Constitutional Amendment Act (1976) on the recommendations of Swaran Singh Committee. Originally, ten FDs were added. In 2002, one more duty was added. Thus, today there are 11 Fundamental Duties.

List of Fundamental Duties

According to Article 51 A, it shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals that inspired the national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women; (e) to defend the country and render national service, when called upon to do so; (f) to value and preserve the rich heritage of the country's composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures; (h) to develop scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to objure violence. (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievenment. (k) to provide opportunities for education to his child or ward between the age of six and 14 years./ This duty was added by the 86th Constitutional Amendment Act, 2002.
Justice Verma Committee and Fundamental Duties
▸ Justice Verma Committee report on teaching Fundamental Duties to citizens was set-up in 1999 and the report was presented in 2000. It recommended reorienting approaches to school curriculum and teacher's education programmes and incorporating Fundamental Duties in higher and professional education. National Commission to Review the Working of the Constitution (NCRWC) report in 2002 recommended to implement the Justice Verma Committee recommendations.
▸ In 2003, Supreme Court directed the Central Government to enact a Law for the enforcement of Fundamental Duties by citizens as suggested by Justice Verma Committee.