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Fundamental rights in India: Difference between revisions
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{{Short description|Inalienable rights guaranteed to People in India by its Constitution}} | {{Short description|Inalienable rights guaranteed to People in India by its Constitution}} | ||
{{Use dmy dates|date=November 2021}} | {{Use dmy dates|date=November 2021}} | ||
{{Use Indian English|date=October 2019}} | {{Use Indian English|date=October 2019}} | ||
'''Fundamental | The '''Fundamental Rights in India''' enshrined in part III (Article 12-32) of the [[Constitution of India]] guarantee [[civil liberty|civil liberties]] such that all Indians can lead their lives in peace and harmony as [[Indian nationality law|citizens of India]]. These rights are known as "fundamental" as they are most essential for all-round development i.e., material, intellectual, moral and spiritual and protected by fundamental law of the land i.e. constitution.If the rights provided by Constitution i.e., The Fundamental rights have been damaged The Parliament can take strict actions, according to Article 32. | ||
These include individual rights common to most [[liberal democracy|liberal democracies]], such as equality before law, [[freedom of speech]] and [[freedom of expression|expression]], freedom of association and peaceful assembly, freedom to practice religion and the right to constitutional remedies for the protection of civil rights by means of [[writ]]s such as [[habeas corpus]]. Violations of these rights result in punishments as prescribed in the [[Indian Penal Code]], subject to discretion of the [[judiciary]]. The Fundamental Rights are defined as basic [[Human rights|human freedoms]] where every Indian citizen has the right to enjoy for a proper and harmonious development of personality and life. These rights apply universally to all citizens of India, irrespective of their [[race (human categorization)|race]], place of birth, [[religion]], [[caste]] or [[gender]]. They are enforceable by the [[court]]s, subject to certain restrictions. The Rights have their origins in many sources, including [[Bill of Rights 1689|England's Bill of Rights]], the [[United States Bill of Rights]] and [[Declaration of the Rights of Man and of the Citizen|France's Declaration of the Rights of Man]]. | |||
The six fundamental rights are:<ref>[[wikisource:Constitution of India/Part III|Constitution of India-Part III Fundamental Rights]].</ref> | |||
# Right to equality (Article 14–18) | |||
# Right to freedom (Article 19–22) | |||
# Right against exploitation (Article 23–24) | |||
# Right to freedom of religion (Article 25–28) | |||
# Cultural and educational rights (Article 29–30) | |||
# Right to constitutional remedies (Article 32) | |||
[[Human rights|Rights]] literally mean those freedoms which are essential for personal good as well as the good of the community. The rights guaranteed under the [[Constitution of India]] are fundamental as they have been incorporated into the ''Fundamental Law of the Land'' and are enforceable in a court of law. However, this does not mean that they are absolute or immune from [[Constitution of India#Amendments|Constitutional amendment]].{{sfn|Tayal|Jacob|2005|p=A-23}} | |||
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 hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and [[Unfree labour|forced labour]]. They also protect cultural and educational rights of ethnic and religious [[minorities]] by allowing them to preserve their languages and also establish and administer their own education institutions. When the Constitution of India came into force it basically gave seven fundamental rights to its citizens. However, Right to Property was removed as a Fundamental Right through 44th Constitutional Amendment in 1978. In 2009, Right to Education Act was added. Every child between the age of 6 to 14 years is entitled to free education. | |||
In the case of ''[[Kesavananda Bharati v. State of Kerala]]'' (1973)[https://indiankanoon.org/doc/257876/], it was held by the Apex Court that Fundamental Rights can be amended by the Parliament, however, such amendment should not contravene the basic structure of the Constitution. | |||
==Origins== | == Origins == | ||
{{See also|Indian independence movement}} | |||
The | The first demand for fundamental rights came in the form of the “Constitution of India Bill, in 1895. Also popularly known as the Swaraj Bill 1895, it was written during the emergence of Indian nationalism and increasingly vocal demands by Indians for self-government. It talked about freedom of speech, right to privacy, right to franchise, etc.{{citation needed|date=May 2022}} | ||
In the following period attempts were made from quarters asking the British government to grants rights for Indians. These demand were made in resolution by the INc between 1917 and 1919 in several reports ands bills | |||
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In 1928, the [[Nehru Report|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]].<ref>{{cite book |last=Gandhi |first=Rajmohan |title=Patel: A Life |page=206}}</ref> 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. | In 1928, the [[Nehru Report|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]].<ref>{{cite book |last=Gandhi |first=Rajmohan |title=Patel: A Life |page=206}}</ref> 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. | ||
When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the [[Constituent Assembly of India]], composed of elected representatives under the presidency of [[Rajendra Prasad]]. While members of Congress constituted a large majority, Congress leaders appointed persons from diverse political backgrounds to positions of responsibility for developing the constitution and national laws.<ref name="constitution">{{cite web |agency=United News of India |url=http://www.rediff.com/freedom/22patel.htm |title=Sardar Patel was the real architect of the Constitution |website=[[Rediff.com]] |access-date=15 May 2006 |archive-url=https://web.archive.org/web/20060505154446/http://www.rediff.com/freedom/22patel.htm |archive-date=5 May 2006 |url-status=live}}</ref> Notably, [[B. R. Ambedkar]] became the chairperson of the [[Constitution of India#Drafting|Drafting Committee]], while [[Jawaharlal Nehru]] and [[Sardar Vallabhbhai Patel]] became chairpersons of [[Committees of the Constituent Assembly|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 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. | ||
== Significance and characteristics == | == Significance and characteristics == | ||
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 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.<ref name="State">The term "State" includes all authorities within the territory of India. It includes the [[Government of India]], the [[Parliament of India]], the governments and legislatures of the [[states of India]]. It also includes all local or other authorities such as [[Municipal Corporation (India)|Municipal Corporations]], Municipal Boards, District Boards, [[Panchayat]]s etc. To avoid confusion with the term [[states and territories of India]], State (encompassing all the authorities in India) has been capitalised and the term state (referring to the state governments) is in lowercase.</ref> 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.<ref>{{cite book |last=Laski |first=Harold Joseph |author-link=Harold Laski |year=1930 |title=Liberty in the Modern State |publisher=Harpers and Brothers |location=New York and London}}</ref> | ||
All people, irrespective of race, religion, caste or gender, have been given the right to petition | All people, irrespective of race, religion, caste or gender, have been given the right to petition the [[Supreme Court of India|Supreme Court]] or the [[High Courts of India|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]]".<ref>{{cite web |url=http://www.worldlii.org/int/cases/ICHRL/1995/69.html |title=''Bodhisattwa Gautam vs. Subhra Chakraborty''; 1995 ICHRL 69 |publisher=www.worldlii.org, World Legal Information Institute |access-date=25 May 2006 |archive-url=https://web.archive.org/web/20051122042456/http://www.worldlii.org/int/cases/ICHRL/1995/69.html |archive-date=22 November 2005 |url-status=live}} This was the case where [[Public interest litigation]] was introduced (date of ruling 15 December 1995).</ref> 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 for citizens alone, including [[Non-resident Indian and person of Indian origin|non-resident Indian citizens]]. | 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 [[Freedom of speech|speech]] and [[Freedom of expression|expression]], and freedom to reside and settle in any part of the country are reserved for citizens alone, including [[Non-resident Indian and person of Indian origin|non-resident Indian citizens]].{{sfn|Tayal|Jacob|2005|p=A-25}} The right to equality in matters of public employment cannot be conferred to [[Overseas Citizenship of India|overseas citizens of India]].<ref name="OCI">{{cite web |url=http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf |title=''Citizenship (Amendment) Bill, 2003'' |page=5 |publisher=rajyasabha.nic.in/, Rajya Sabha |access-date=25 May 2006 |archive-url=https://web.archive.org/web/20060425230738/http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf |archive-date=25 April 2006}}</ref> | ||
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals.<ref>{{cite web |url=http://www.worldlii.org/int/cases/ICHRL/1995/69.html |title=''Bodhisattwa Gautam vs. Subhra Chakraborty''; 1995 ICHRL 69 |publisher=www.worldlii.org, World Legal Information Institute |access-date=25 May 2006 |archive-url=https://web.archive.org/web/20051122042456/http://www.worldlii.org/int/cases/ICHRL/1995/69.html |archive-date=22 November 2005 |url-status=live}} This was the case where fundamental rights were enforced against private individuals (date of ruling 15 December 1995).</ref> For instance, the Constitution abolishes untouchability and also prohibits ''[[Unfree labour|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<ref>''[[Kesavananda Bharati vs. The State of Kerala]]''; AIR 1973 S.C. 1461, (1973) 4 SCC 225 – In what became famously known as the "Fundamental Rights case", the [[Supreme Court of India|Supreme Court]] decided that the basic structure of the [[Constitution of India]] was unamendable</ref> that all provisions of the Constitution, including fundamental rights, can be amended, but that [[Parliament of India|Parliament]] cannot alter the basic structure of the constitution. Since the fundamental rights can be altered only by a [[Amendment of the Constitution of India|constitutional amendment]], their inclusion is a check not only on the [[Executive (government)|executive branch]] but also on the [[Parliament of India|Parliament]] and state legislatures.<ref>Tayal, B.B. & Jacob, A. (2005), ''Indian History, World Developments and Civics'', pg. A-24</ref> | Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals.<ref>{{cite web |url=http://www.worldlii.org/int/cases/ICHRL/1995/69.html |title=''Bodhisattwa Gautam vs. Subhra Chakraborty''; 1995 ICHRL 69 |publisher=www.worldlii.org, World Legal Information Institute |access-date=25 May 2006 |archive-url=https://web.archive.org/web/20051122042456/http://www.worldlii.org/int/cases/ICHRL/1995/69.html |archive-date=22 November 2005 |url-status=live}} This was the case where fundamental rights were enforced against private individuals (date of ruling 15 December 1995).</ref> For instance, the Constitution abolishes untouchability and also prohibits ''[[Unfree labour|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<ref>''[[Kesavananda Bharati vs. The State of Kerala]]''; AIR 1973 S.C. 1461, (1973) 4 SCC 225 – In what became famously known as the "Fundamental Rights case", the [[Supreme Court of India|Supreme Court]] decided that the basic structure of the [[Constitution of India]] was unamendable</ref> that all provisions of the Constitution, including fundamental rights, can be amended, but that [[Parliament of India|Parliament]] cannot alter the basic structure of the constitution. Since the fundamental rights can be altered only by a [[Amendment of the Constitution of India|constitutional amendment]], their inclusion is a check not only on the [[Executive (government)|executive branch]] but also on the [[Parliament of India|Parliament]] and state legislatures.<ref>Tayal, B.B. & Jacob, A. (2005), ''Indian History, World Developments and Civics'', pg. A-24</ref> | ||
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A [[State of Emergency in India|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 of India|President]] may by order suspend the right to move the court for the enforcement of other rights as well. | A [[State of Emergency in India|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 of India|President]] may by order suspend the right to move the court for the enforcement of other rights as well. | ||
== Right | == Right To Equality == | ||
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–18, which collectively encompass the general principles of equality before law and non-discrimination <ref>{{harvnb|Basu|1993|p=90}}</ref> and Articles 17–18 which collectively encompass further the philosophy of social equality.<ref name="Basu 1993 93–94">{{harvnb|Basu|1993|pp=93–94}}</ref> | |||
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles | |||
=== Article 14 === | === Article 14 === | ||
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=== Article 18 === | === Article 18 === | ||
''Article 18'' prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and title of nobility conferred by the British have been abolished. However, [[Military rank| | ''Article 18'' prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and title of nobility conferred by the British have been abolished. However, [[Military rank|military]] and [[Academic rank|academic]] distinctions can be conferred on the citizens of India. The awards of ''[[Bharat Ratna]]'' and ''[[Padma Vibhushan]] can be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition".<ref>{{harvnb|Basu|1993|pp=94–95}}</ref><ref>{{harvnb|Basu|2003|pp=164}}</ref> The Supreme Court, on 15 December 1995, upheld the validity of such awards.<ref>{{cite web |year=1995 |title=BALAJI RAGHAVAN [IN T.C.(C) NO.9/94]S.P. ANAND [IN T.C.(C) N] (Judgement of the Supreme Court on 15 December 1995) |url=https://main.sci.gov.in/judgment/judis/10166.pdf |url-status=live |access-date=17 July 2020 |archive-date=29 June 2021 |archive-url=https://web.archive.org/web/20210629120940/https://main.sci.gov.in/judgment/judis/10166.pdf }}</ref> | ||
== Right | == Right To Freedom == | ||
The Right to Freedom is covered in Article 19 to 22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India.<ref>{{harvnb|Basu|2003|pp=167–168}}</ref><ref>{{Cite web |url=http://www.gkbasic.com/2012/11/right-to-freedom.html |title=Right To Freedom |publisher=GKBASIC |access-date=24 November 2012 |archive-date=13 November 2013 |archive-url=https://web.archive.org/web/20131113012801/http://www.gkbasic.com/2012/11/right-to-freedom.html |url-status=live }}</ref> These include the [[freedom of speech and expression]], [[freedom of assembly]] without arms, [[freedom of association]], [[freedom of movement]] throughout the territory of our country, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may be imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted and include national security, public order, decency and morality, contempt of court, incitement to offences and defamation. The State is also empowered, in the interests of the general public to nationalize any trade, industry or service to the exclusion of the citizens.<ref>{{harvnb|Basu|1993|pp=96–97}}</ref> | The Right to Freedom is covered in Article 19 to 22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India.<ref>{{harvnb|Basu|2003|pp=167–168}}</ref><ref>{{Cite web |url=http://www.gkbasic.com/2012/11/right-to-freedom.html |title=Right To Freedom |publisher=GKBASIC |access-date=24 November 2012 |archive-date=13 November 2013 |archive-url=https://web.archive.org/web/20131113012801/http://www.gkbasic.com/2012/11/right-to-freedom.html |url-status=live }}</ref> These include the [[freedom of speech and expression]], [[freedom of assembly]] without arms, [[freedom of association]], [[freedom of movement]] throughout the territory of our country, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may be imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted and include national security, public order, decency and morality, contempt of court, incitement to offences and defamation. The State is also empowered, in the interests of the general public to nationalize any trade, industry or service to the exclusion of the citizens.<ref>{{harvnb|Basu|1993|pp=96–97}}</ref> | ||
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22.<ref>{{harvnb|Basu|2003|p=167}}</ref> The scope of these articles, particularly with respect to the doctrine of [[due process]], was heavily debated by the Constituent Assembly. It was argued, especially by [[Benegal Narsing Rau]], that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether.<ref>{{harvnb|Austin|1999|pp=101–102}}</ref> The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favor of "procedure established by law".<ref>{{harvnb|Austin|1999|pp=104–105}}</ref> {{anchor|ManekaCase}}As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of ''[[Maneka Gandhi v. Union of India]]'' extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable,<ref>{{harvnb|Basu|2003|p=258}}</ref> and effectively reading due process into Article 21.<ref>{{harvnb|Basu|1993|pp=105–106}}</ref> In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living".<ref>{{Harvnb|Basu|2003|p=259}}</ref> Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, good health,<ref>{{cite journal |last1=Khosla |first1=Madhav |title=Making social rights conditional: Lessons from India |journal=International Journal of Constitutional Law |volume=8 |issue=4 |page=761 |doi=10.1093/icon/mor005 | The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22.<ref>{{harvnb|Basu|2003|p=167}}</ref> The scope of these articles, particularly with respect to the doctrine of [[due process]], was heavily debated by the Constituent Assembly. It was argued, especially by [[Benegal Narsing Rau]], that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether.<ref>{{harvnb|Austin|1999|pp=101–102}}</ref> The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favor of "procedure established by law".<ref>{{harvnb|Austin|1999|pp=104–105}}</ref> {{anchor|ManekaCase}}As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of ''[[Maneka Gandhi v. Union of India]]'' extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable,<ref>{{harvnb|Basu|2003|p=258}}</ref> and effectively reading due process into Article 21.<ref>{{harvnb|Basu|1993|pp=105–106}}</ref> In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living".<ref>{{Harvnb|Basu|2003|p=259}}</ref> Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, good health,<ref>{{cite journal |last1=Khosla |first1=Madhav |title=Making social rights conditional: Lessons from India |journal=International Journal of Constitutional Law |volume=8 |issue=4 |page=761 |doi=10.1093/icon/mor005 |year=2011 |doi-access=free }}</ref> clean environment, water,<ref>{{cite journal |last1=Narain |first1=Vrinda |title=Water as a Fundamental Right: A Perspective from India |journal=Vermont Law Review |volume=34 |page=920 |url=https://lawreview.vermontlaw.edu/wp-content/uploads/2012/02/narain.pdf |access-date=9 November 2015 |archive-date=25 June 2020 |archive-url=https://web.archive.org/web/20200625174454/https://lawreview.vermontlaw.edu/wp-content/uploads/2012/02/narain.pdf |url-status=live }}</ref> speedy trial<ref>{{cite book |last1=Gaur |first1=K. D. |title=Article – Law and the Poor: Some Recent Developments in India (Book – Criminal Law and Criminology) |date=2002 |publisher=Deep & Deep |location=New Delhi |isbn=81-7629-410-1 |page=564 |url=https://books.google.com/books?id=LL4dMTWMpC4C&pg=PA564 |access-date=9 November 2015 |archive-date=20 May 2021 |archive-url=https://web.archive.org/web/20210520001147/https://books.google.com/books?id=LL4dMTWMpC4C&pg=PA564 |url-status=live }}</ref> and humanitarian treatment while imprisoned.<ref>{{Cite journal |last1=Dam |first1=Shubhankar |title=Criminal Rights and Constitutional Wrongs: A View from India |journal=Singapore Academy of Law Journal |year=2013 |volume=25 |pages=714–735 |url=http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/652/%282013%29%2025%20SAcLJ%20714-735%20%28Shubhankar%20Dam%29.pdf#page=5 |access-date=8 December 2014 |url-status=dead |archive-url=https://web.archive.org/web/20141219134514/http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/652/%282013%29%2025%20SAcLJ%20714-735%20%28Shubhankar%20Dam%29.pdf#page=5 |archive-date=19 December 2014}}</ref><ref>{{Harvnb|Basu|2003|pp=260–261}}</ref> The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002.<ref name="86amact">[http://indiacode.nic.in/coiweb/amend/amend86.htm 86th Amendment Act, 2002] {{Webarchive|url=https://web.archive.org/web/20111209092059/http://indiacode.nic.in/coiweb/amend/amend86.htm |date=9 December 2011 }}.</ref> | ||
Article 20 provides protection from conviction for offences in certain respects, including the rights against [[ex post facto law]]s, [[double jeopardy]] and freedom from [[self-incrimination]].<ref>{{harvnb|Basu|1993|p=102}}</ref> | Article 20 provides protection from conviction for offences in certain respects, including the rights against [[ex post facto law]]s, [[double jeopardy]] and freedom from [[self-incrimination]].<ref>{{harvnb|Basu|1993|p=102}}</ref> | ||
Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate.<ref>{{harvnb|Basu|2003|pp=282–284}}</ref> The Constitution also authorizes the State to make laws providing for [[preventive detention]], subject to certain other safeguards present in Article 22.<ref>{{Harvnb|Basu|1993|p=106}}</ref> The provisions pertaining to preventive detention were discussed with scepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949.<ref>{{Harvnb|Austin|1999|pp=110–112}}</ref> Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.<ref>{{Harvnb|Basu|1993|p=107}}</ref> | Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate.<ref>{{harvnb|Basu|2003|pp=282–284}}</ref> The Constitution also authorizes the State to make laws providing for [[preventive detention]], subject to certain other safeguards present in Article 22.<ref>{{Harvnb|Basu|1993|p=106}}</ref> The provisions pertaining to preventive detention were discussed with scepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949.<ref>{{Harvnb|Austin|1999|pp=110–112}}</ref> Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.<ref>{{Harvnb|Basu|1993|p=107}}</ref> | ||
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[[File:ChildLabor1910.png|thumb|180px|left|[[Child labour]] and [[Unfree labour|''Beggar'']] is prohibited under the Right against Exploitation.]] | [[File:ChildLabor1910.png|thumb|180px|left|[[Child labour]] and [[Unfree labour|''Beggar'']] is prohibited under the Right against Exploitation.]] | ||
The Right against | The Right against Exploitation contained in Articles 23–24, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State.<ref>{{harvnb|Basu|1993|p=110}}</ref> Article 23 prohibits [[human trafficking]], making it an offence punishable by law, and also prohibits [[forced labour]] or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including [[conscription]] and [[community service]].<ref>{{harvnb|Basu|1993|pp=110–111}}</ref><ref>{{Harvnb|Basu|2003|p=325}}</ref> The Bonded Labour System (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article.<ref>{{Harvnb|Basu|2003|p=326}}</ref> Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers.<ref>{{Harvnb|Basu|2003|p=327}}</ref> | ||
== Right to freedom of religion ==<!-- This section is linked from [[Religion in India]] --> | == Right to freedom of religion ==<!-- This section is linked from [[Religion in India]] --> | ||
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* Article 26 guarantees all [[religious denomination]]s and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage a property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination.<ref>{{harvnb|Basu|2003|pp=336–337}}</ref> The State is also empowered to regulate any economic, political or other secular activity associated with religious practice.<ref name="Basu 111" /> | * Article 26 guarantees all [[religious denomination]]s and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage a property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination.<ref>{{harvnb|Basu|2003|pp=336–337}}</ref> The State is also empowered to regulate any economic, political or other secular activity associated with religious practice.<ref name="Basu 111" /> | ||
* Article 27 guarantees that no one can be compelled to pay taxes for the promotion of any particular religion or religious institution.<ref>{{Harvnb|Basu|2003|p=343}}</ref> | * Article 27 guarantees that no one can be compelled to pay taxes for the promotion of any particular religion or religious institution.<ref>{{Harvnb|Basu|2003|p=343}}</ref> | ||
* Article 28 prohibits [[Religious education|religious instruction]] in a wholly | * Article 28 prohibits [[Religious education|religious instruction]] in a wholly or partially state-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent.<ref name="Basu 111" /> | ||
== Right to life == | == Right to life == | ||
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== Cultural and educational rights == | == Cultural and educational rights == | ||
The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination.<ref name="Basu 345">{{Harvnb|Basu|2003|p=345}}</ref> | The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic, and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination.<ref name="Basu 345">{{Harvnb|Basu|2003|p=345}}</ref> | ||
* Article 29 grants any section of citizens having a distinct language, script culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them.<ref name="Basu 345" /><ref name="Basu 115">{{Harvnb|Basu|1993|p=115}}</ref> It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to [[Reservation in India|reservation]] of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to, 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.<ref>{{Harvnb|Basu|2003|pp=346–347}}</ref> | * Article 29 grants any section of citizens having a distinct language, script, or culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them.<ref name="Basu 345" /><ref name="Basu 115">{{Harvnb|Basu|1993|p=115}}</ref> It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to [[Reservation in India|reservation]] of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to, 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.<ref>{{Harvnb|Basu|2003|pp=346–347}}</ref> | ||
* Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority.<ref name="Basu 115" /> The term "[[Minority group|minority]]", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority.<ref>{{Harvnb|Basu|2003|pp=348–349}}</ref> This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the | * Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority.<ref name="Basu 115" /> The term "[[Minority group|minority]]", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such a minority.<ref>{{Harvnb|Basu|2003|pp=348–349}}</ref> This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilization of any aid granted by it.<ref>{{Harvnb|Basu|2003|pp=354–355}}</ref> | ||
== Right to | == Right to Constitutional Remedies == | ||
Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution.<ref name=" Basu 122">{{Harvnb|Basu|1993|p=122}}</ref> The Supreme Court has been empowered to issue [[Writs#Indian law|writs]], namely ''[[habeas corpus]]'', ''[[mandamus]]'', ''[[writ of prohibition|prohibition]]'', ''[[certiorari]]'' and ''[[quo warranto]]'', for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these [[prerogative writ]]s even in cases not involving the violation of Fundamental Rights.<ref>{{harvnb|Basu|1993|p=123}}</ref> The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be ''[[suo motu]]'' or on the basis of a [[public interest litigation]]. This right cannot be suspended, except under the provisions of Article 226, when a state of emergency is declared.<ref name=" Basu 122" /> | Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution.<ref name=" Basu 122">{{Harvnb|Basu|1993|p=122}}</ref> The Supreme Court has been empowered to issue [[Writs#Indian law|writs]], namely ''[[habeas corpus]]'', ''[[mandamus]]'', ''[[writ of prohibition|prohibition]]'', ''[[certiorari]]'' and ''[[quo warranto]]'', for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these [[prerogative writ]]s even in cases not involving the violation of Fundamental Rights.<ref>{{harvnb|Basu|1993|p=123}}</ref> The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be ''[[suo motu]]'' or on the basis of a [[public interest litigation]]. This right cannot be suspended, except under the provisions of Article 226, when a state of emergency is declared.<ref name=" Basu 122" /> | ||
Dr[[B. R. Ambedkar]] wanted a specific guarantee of fundamental rights expressly incorporated in the constitution so that it could be easily enforced. He drafted this Article 32.<ref name="auto1">{{Cite web |url=https://m.thewire.in/article/rights/supreme-court-article-32-ambedkar-arnab-goswami |title=Article 32: Rights for All or for a Favoured Few? |access-date=27 March 2021 |archive-date=10 December 2020 |archive-url=https://web.archive.org/web/20201210075612/https://m.thewire.in/article/rights/supreme-court-article-32-ambedkar-arnab-goswami |url-status=live }}</ref> [[B. R. Ambedkar]] had said, {{Blockquote|text="If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity – I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it."<ref>{{Cite web|url=https://theprint.in/theprint-essential/what-is-article-32-which-ambedkar-said-was-heart-and-soul-of-constitution/546050/|title=What is Article 32 which Ambedkar said was 'heart' and 'soul' of Constitution|first=Revathi|last=Krishnan|date=17 November 2020|access-date=27 March 2021|archive-date=29 December 2020|archive-url=https://web.archive.org/web/20201229132308/https://theprint.in/theprint-essential/what-is-article-32-which-ambedkar-said-was-heart-and-soul-of-constitution/546050/|url-status=live}}</ref><ref name="auto1" /><ref name="auto2">{{Cite web|url=https://www.dnaindia.com/india/report-kerala-journalist-siddique-kappan-article-32-fundamental-rights-constitution-supreme-court-cji-s-a-bobde-2857144|title=DNA Explainer: Why is Article 32 called 'heart' and 'soul' of Constitution and its ever changing interpretation|date=18 November 2020|website=DNA India|access-date=27 March 2021|archive-date=26 November 2020|archive-url=https://web.archive.org/web/20201126151946/https://www.dnaindia.com/india/report-kerala-journalist-siddique-kappan-article-32-fundamental-rights-constitution-supreme-court-cji-s-a-bobde-2857144|url-status=live}}</ref><ref>{{Cite journal |url=https://www.jstor.org/stable/4408327 |jstor=4408327 |title=Right to Constitutional Remedy: Significance of Article 32 |last1=Rakshit |first1=Nirmalendu Bikash |journal=Economic and Political Weekly |year=1999 |volume=34 |issue=34/35 |pages=2379–2381 |access-date=27 March 2021 |archive-date=25 May 2020 |archive-url=https://web.archive.org/web/20200525225657/https://www.jstor.org/stable/4408327 |url-status=live }}</ref><ref name="auto">{{Cite web|url=https://indianexpress.com/article/explained/article-32-and-supreme-court-fundamental-rights-7055040/|title=Explained: What have been the Supreme Court's recent observations on Article 32?|date=19 November 2020|access-date=27 March 2021|archive-date=28 April 2021|archive-url=https://web.archive.org/web/20210428145451/https://indianexpress.com/article/explained/article-32-and-supreme-court-fundamental-rights-7055040/|url-status=live}}</ref><ref>{{Cite web |url=https://indianexpress.com/article/opinion/columns/constitution-babasaheb-ambedkar-warning-hero-worship-6069022/ |title=Babasaheb's warning: In politics, hero-worship is a path to degradation and eventual dictatorship |date=15 October 2019 |access-date=27 March 2021 |archive-date=27 February 2021 |archive-url=https://web.archive.org/web/20210227225358/https://indianexpress.com/article/opinion/columns/constitution-babasaheb-ambedkar-warning-hero-worship-6069022/ |url-status=live }}</ref>|author=|title=|source=}} During the Constituent Assembly debates in December 1948, Dr. [[Babasaheb Ambedkar]] had said that the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was 'one of the greatest safeguards that can be provided for the safety and security of the individual'.<ref name="auto2" /><ref name="auto" /> | |||
The right to [[constitutional remedies]] is present for enforcement of fundamental rights. | The right to [[constitutional remedies]] is present for enforcement of fundamental rights. | ||
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Although [[speedy trial]] is a fundamental right,<ref>{{Cite web|url=http://alrc.asia/article2/2008/06/2-analysis-of-the-legal-position-in-india-on-speedy-trial-versus-judicial-delay/|title=2. Analysis of the legal position in India on speedy trial versus judicial delay | Article 2}}</ref> | Although [[speedy trial]] is a fundamental right,<ref>{{Cite web|url=http://alrc.asia/article2/2008/06/2-analysis-of-the-legal-position-in-india-on-speedy-trial-versus-judicial-delay/|title=2. Analysis of the legal position in India on speedy trial versus judicial delay | Article 2}}</ref> | ||
the cases involving violations of fundamental rights take an inordinate amount of time for resolution by the Supreme Court which is against the [[legal maxim]] '[[justice delayed is justice denied]]'.<ref>{{cite | the cases involving violations of fundamental rights take an inordinate amount of time for resolution by the Supreme Court which is against the [[legal maxim]] '[[justice delayed is justice denied]]'.<ref>{{cite news |title=What causes judicial delay? Judgements diluting time frames in Code of Civil Procedure worsen the problem of adjournments |newspaper=The Times of India |url=https://blogs.timesofindia.indiatimes.com/toi-edit-page/what-causes-judicial-delay-judgments-diluting-timeframes-in-code-of-civil-procedure-worsen-the-problem-of-adjournments/ |access-date=13 September 2017 |date=25 August 2016 |archive-url=https://web.archive.org/web/20170904045743/http://blogs.timesofindia.indiatimes.com/toi-edit-page/what-causes-judicial-delay-judgments-diluting-timeframes-in-code-of-civil-procedure-worsen-the-problem-of-adjournments/ |archive-date=4 September 2017 |url-status=live|last1=Ranjan |first1=Brajesh }}</ref> | ||
== Amendments == | == Amendments == | ||
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=== Validity of Article 31B === | === Validity of Article 31B === | ||
Articles 31A and [[s:Constitution of India/Part III|Article 31B]] are added by the [[First Amendment of the Constitution of India|first constitutional amendment]] in 1951. Article 31B says that any acts and regulations included in the Ninth Schedule of the constitution by the Parliament can override the fundamental rights and such laws cannot be repealed or made void by the judiciary on the grounds of violating fundamental rights. Thus fundamental rights given in [[ | Articles 31A and [[s: Constitution of India/Part III | Article 31B]] are added by the [[First Amendment of the Constitution of India | first constitutional amendment]] in 1951. Article 31B says that any acts and regulations included in the Ninth Schedule of the constitution by the Parliament can override the fundamental rights and such laws cannot be repealed or made void by the judiciary on the grounds of violating fundamental rights. Thus fundamental rights given in [[constitution of India/Part III | Part III]] are not equally applicable in each state /region and can be made different by making additions/deletions to Ninth Schedule by constitutional amendments. In 2007, the Supreme Court ruled that there could not be any blanket immunity from [[Judicial review in India|judicial review]] for the laws inserted in the Ninth Schedule. Apex court also stated it shall examine laws included in the Ninth Schedule after 1973 for any incompatibility with the basic structure doctrine.<ref>{{cite news |url=http://www.thehindu.com/todays-paper/IX-Schedule-laws-open-to-review/article14705323.ece |title=IX Schedule laws open to review |year=2007 |access-date=21 October 2017 |newspaper=The Hindu |archive-url=https://web.archive.org/web/20181001010818/https://www.thehindu.com/todays-paper/IX-Schedule-laws-open-to-review/article14705323.ece |archive-date=1 October 2018 |url-status=live}}</ref> | ||
=== Amendment to Article 31C === | === Amendment to Article 31C === | ||
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=== Sources === | === Sources === | ||
*{{Cite book |title=The Indian Constitution: Cornerstone of a Nation |last=Austin |first=Granville |author-link=Granville Austin |year=1999 |publisher=[[Oxford University Press]] |location=New Delhi |isbn=0-19-564959-1 |page=390}} | * {{Cite book |title=The Indian Constitution: Cornerstone of a Nation |last=Austin |first=Granville |author-link=Granville Austin |year=1999 |publisher=[[Oxford University Press]] |location=New Delhi |isbn=0-19-564959-1 |page=390}} | ||
* {{Cite book |title=Introduction to the Constitution of India |last=Basu |first=Durga Das |year=1993 |edition=15th |place=New Delhi |publisher=[[Prentice Hall|Prentice Hall of India]] |isbn=81-203-0839-5 |page=475}} | * {{Cite book |title=Introduction to the Constitution of India |last=Basu |first=Durga Das |year=1993 |edition=15th |place=New Delhi |publisher=[[Prentice Hall|Prentice Hall of India]] |isbn=81-203-0839-5 |page=475}} | ||
* {{Cite book |title=Shorter Constitution of India |last=Basu |first=Durga Das |year=2003 |edition=13th |place=Nagpur |publisher=Wadhwa & Co |isbn=978-81-8038-206-2 |page=1972}} | * {{Cite book |title=Shorter Constitution of India |last=Basu |first=Durga Das |year=2003 |edition=13th |place=Nagpur |publisher=Wadhwa & Co |isbn=978-81-8038-206-2 |page=1972}} | ||
* {{cite book |last1=Tayal |first1=B. B. |last2=Jacob |first2=A. |title=Indian History, World Developments and Civics |publisher=Avichal Publishing Company |year=2005}} | |||
{{Government of India}} | {{Government of India}} | ||