Fundamental Rights(6)& duties|Very important for exams|What about 7th fundamental right?

 The first explicit (clear) Demand for the Fundamental Rights came in the form of the “Constitution of India Bill, 1895 which was created under Bal Gangadhar Tilak. The Moti Lal Nehru Report of 1928 demanded inalienable Fundamental Rights for the people of India.

The Congress adopted a resolution on Fundamental Rights at the Karachi Session of 1931 presided over by Sardar Vallabhbhai Patel. The format of Fundamental Right was prepared by J.L. Nehru.

The Fundamental Rights are enshrined in Part 3 of the Constitution from Articles 12 to 35. Part 3 is also known as the Magnacarta (Authority Letter) of the Indian Constitution.

Originally the Constitution provided for seven fundamental rights.

(1) Right to Equality (Article 14 to 18)

(2) Right to Freedom (Article 19 to 22)

(3) Right against Exploitation (Article 23 to 24)

(4) Right to Freedom of religion (Article 25 to 28)

(5) Cultural and Educational rights (Article 29 to 30)

(6) Right to Property (Article 31)

(7) Right to Constitutional remedies (Article 32)

However, the Right to property was deleted from the list of fundamental rights by 44th Amendment Act 1978. Now Right to property is a legal right under Article 300 – A in part XII of the Constitution. Fundamental Rights are guarantee against the arbitrary Action of the State. They can be suspended during the operation of National Emergency excepts the rights guaranteed by Articles 20 and 21. They are justiciable.

Fundamental rights in Indian Constitution is often compared with the Bill of Rights in the Constitution of U. S. A Part III of Indian Constitution is rightly regarded as the Magnacarta Carta of India.

The Fundamental Rights defended and guaranteed by the Constitution. 

1. Right to Equality

Article 14- Provides for equality before laws and equal protection of laws.

Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Article 16 – Equality of opportunity in matters of public employment.

Article 17 – Abolition of untouchability and prohibition of its practice.

Article 18 – Abolition of titles except military and academic

2. Right to Freedom

Article 19-Guarantees to all citizen the six rights

Articles 19(1)(A)-Right to freedom of speech and expression

Article 19(1)(B)-Right to assemble peacefully and without arms

Article19(1)(C)-Right to form associations or unions or cooperative societies

Article 19(1)(D) -Right to move freely throughout the territory of India

Article19 (1)(E) -Right to reside and settle in any part of the territory of India

Article19(1)(F)-Right to practice any profession or to carry on any occupation, trade and business.

Article 20 (Protection in respect of conviction): It describes three types of freedom.

1. Any person will be punished only once for a crime.

2. At the time of committing the crime, the law will be punished under the same and not under the first and subsequent law.

3. No person shall be compelled to testify against himself in court.

Article 21-Protectionn of life and personal liberty.

86 Constitutional Amendment Act 2002 made elementary education a fundamental right and added article 21 – A.

Article 22 (Protection Against Arrest and Detections:) If any person is arbitrarily detained, he is provided with three types of freedom.

1. Must state the reason for detention

2 . Within 24 hours (except the time of arrival) it will be presented to the Magistrate.

3. He / she will have the right to consult his / her lawyer.

Preventive Detention: Clauses 3, 4, 5 and 6 of Article 22 of the Constitution of India refer to the provisions in this regard. Under the Preventive Prohibition Act, a person is arrested before committing a crime. The purpose of preventive prohibition is not to punish the person for the crime, but to stop him from committing the crime. In fact, this preventive prohibition may be due to security of the state, maintenance of public order or security of India. When a person is arrested under some method of preventive prohibition, then

1. The government can only detain such a person in custody for 3 months. If the arrested person has to be detained for more than three months, the report of the advisory board has to be obtained for this.

2. Thus the detained person will be informed as soon as possible on the basis of prohibition, but it is not necessary to disclose the facts which are deemed to be against the public interest.

3. The detained person should be given an early opportunity to make a representation against the prohibition order.

The methods made so far related to preventive prohibition:

1. Preventive Detention Act, 1950 (Preventive Detention Act, 1950): The Parliament of India passed the first Preventive Prohibition Act on 26 February 1950. Its purpose was to prevent anti-national elements from acting inimical to India’s immunity. It was to end on April 1, 1951, but its lifespan was extended from time to time. It’s finally end on December 31, 1971. The duration of detention was 1 year.

2. MISA-This was contrary to the 44th Constitutional Amendment (1978) of the Internal Security System Act, 1971 (MISA – Maintenance of Internal Security Act) and was therefore repealed in April 1979. The period of detention in this was 21 months.

3. Foreign Exchange Protection Smuggling Prohibition Act 1974 (COFEPOSA Conservation of Foreign Exchange and Prevention of Smuggling Activities Act): It came into force on 19 December 1974. Earlier, the period of house arrest for smugglers was 1 year, which has been increased to 2 years by an ordinance on 13 July 1984.

4. The National Security Act, 1980 (NSA – National Security Act) was enacted in 1980 in all states except Jammu and Kashmir.

5. The TADA– Terrorist and Disruptive Activities Act was enacted in 1985. Under the Preventive Prohibition System, till now the law was made which was the most effective and most stringent law. It was abolished on 23 May 1995.Period of detention for 6 months.

6. Prevention of Terrorism Ordinance(POTO) It was implemented on 25 October 2001. Poto is a form of Tada. A total of 23 terrorist groups were banned under this. Provision has been made to punish those who hide information related to terrorist and terrorists. The police can arrest anyone on suspicion but cannot keep them in custody for more than three months without a charge sheet. A person arrested under POTO can appeal to the High Court or Supreme Court.

But this appeal can also take place only three months after the arrest. POTO – Prevention of Terrorism Act should be enacted on March 28, 2002. It was abolished by an ordinance on 21 September 2004.

3. Right Against Exploitation.

Article 23- (Prohibition  of traffic in human beings  and forced labour)By his, the forced labor and other similar forced labor of a person is prohibited, whose violation law is a punishable offense.

Note: National service can be compelled if required.

Article 24- (Prohibition of employment of children) No child below the age of 14 years can be employed in factories, mines or any other risky job.

4. Right to Religious Freedom

Article 25- (Freedom of conscience and free to follow, conduct and propagate religion): Any person can believe and propagate any religion.

Article 26 – (Freedom to manage religious affairs) The person has the right to establish and nurture institutions for his religion, ownership of property and administration.

Article 27 -The state cannot compel any person to pay such tax, whose income has been specially fixed to spend in the promotion or nurturing of a particular religion or religious community.

Article 28 – No religious education will be imparted in any education institution and fully funded by state. Such educational institutions cannot force their students to participate in any religious ritual or to preach any sermon forcefully.

5. Cultural and Educational Rights

 Article 29- (Protection of interests of minorities) Any minority class can preserve its language, script and culture and will not be prevented from entering any government educational institution only on the basis of language, caste, religion and culture.

Article 30 – (Right to Minority Classes to Establish and Administer Educational Institutions) Any minority can run an educational institution of his choice and the government will not discriminate in granting it.

6. Right to Constitutional Remedies:

Dr. Bhimrao Ambedkar has called the right to constitutional remedies the ‘soul of the constitution’.

Article 32- In order to enforce fundamental rights under it, the right to apply to the Supreme Court has been granted by appropriate proceedings.

The Supreme Court (under article 32) can issue writs only for the enforcement of fundamental rights and the High Courts (under article 226) can issue writs not only for the enforcement of fundamental rights but also for any other purpose. Five kinds of writ mentioned in the Articles 32 and 226 of the Constitution.

(1) Habeas Corpus (to have the body of) – The writ of Habeas Corpus can be issued against both public authorities as well as private individuals whosever has detained another person to produce the body of the latter before it. If the detention is found to be illegal, the detained person would be set free. This writ is about individual liberty against arbitrary detention.

(2) Mandamus (We command) – It is a command issued by the court against a public official, any public body, a corporation an interior court, a tribunal or government, asking them to perform official duties that one has failed or refuse to perform.

(3) Prohibition (to forbid) -It is issued by higher court to a lower court or tribunal to prevent the latter form exceeding its jurisdiction or usurping a jurisdiction that it does not posse.

(4) Certiorari (to be certified) – It is issued on the grounds of the excess of jurisdiction or lack of jurisdiction or error of law. It is issued by a higher court to lower court to transfer a case pending with the latter to itself or to quash the order of the latter in a case.

(5) Quo-Warranto (By what authority or warrant) -It is issued by the court to enquire into the legality of claim of a person to a public office.

Article 358 provides for the suspension of provisions of Article 19 during emergencies. Article 359 provides for the suspension of the enforcement of fundamental rights during emergencies except articles 20 and 21 (after 44 Constitutional Amendment Act).