The Fundamental Rights in India enshrined in the III (Article 12-32) of the
Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
guarantee
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
such that all Indians can lead their lives in peace and harmony as
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.
These include individual rights common to most
liberal democracies
Liberal democracy is the combination of a liberal political ideology that operates under an indirect democratic form of government. It is characterized by elections between multiple distinct political parties, a separation of powers into diff ...
, such as equality before law,
freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
and
expression
Expression may refer to:
Linguistics
* Expression (linguistics), a word, phrase, or sentence
* Fixed expression, a form of words with a specific meaning
* Idiom, a type of fixed expression
* Metaphorical expression, a particular word, phrase, o ...
, 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
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
s such as
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
. Violations of these rights result in punishments as prescribed in the
Indian Penal Code
The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted on the recommendations of first law commission of India established in ...
, subject to discretion of the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
. The Fundamental Rights are defined as basic
human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of
race
Race, RACE or "The Race" may refer to:
* Race (biology), an informal taxonomic classification within a species, generally within a sub-species
* Race (human categorization), classification of humans into groups based on physical traits, and/or s ...
, place of birth,
religion
Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, ...
,
caste
Caste is a form of social stratification characterised by endogamy, hereditary transmission of a style of life which often includes an occupation, ritual status in a hierarchy, and customary social interaction and exclusion based on cultura ...
or
sex
Sex is the trait that determines whether a sexually reproducing animal or plant produces male or female gametes. Male plants and animals produce smaller mobile gametes (spermatozoa, sperm, pollen), while females produce larger ones (ova, oft ...
. They are enforceable by the
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s, subject to certain restrictions. The Rights have their origins in many sources, including
England's Bill of Rights, the
United States Bill of Rights
The United States Bill of Rights comprises the first ten amendments to the United States Constitution. Proposed following the often bitter 1787–88 debate over the ratification of the Constitution and written to address the objections rais ...
and
France's Declaration of the Rights of Man.
The six fundamental rights are:
# 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)
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
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
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
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 that they are immune from
Constitutional amendment
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, t ...
.
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
Untouchability is a form of social institution that legitimises and enforces practices that are discriminatory, humiliating, exclusionary and exploitative against people belonging to certain social groups. Although comparable forms of discrimin ...
and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and
forced labour
Forced labour, or unfree labour, is any work relation, especially in modern or early modern history, in which people are employed against their will with the threat of destitution, detention, violence including death, or other forms of ex ...
. 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
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970), also known as the Kesavananda Bharati judgement, was a landmark decision of the Supreme Court of India that outlined the basic structure doc ...
'' (197
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
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.
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
In 1919, the
Rowlatt Act
The Anarchical and Revolutionary Crimes Act of 1919, popularly known as the Rowlatt Act, was a law that applied in British India. It was a legislative council act passed by the Imperial Legislative Council in Delhi on 18 March 1919, indefinitel ...
gave extensive powers to the British government and allowed indefinite arrest and detention of individuals, warrantless searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to
mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.
In 1928, the
Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for
dominion
The term ''Dominion'' is used to refer to one of several self-governing nations of the British Empire.
"Dominion status" was first accorded to Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State at the 1926 ...
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 Indian National Congress (INC), colloquially the Congress Party but often simply the Congress, is a political party in India with widespread roots. Founded in 1885, it was the first modern nationalist movement to emerge in the British Em ...
(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
A minimum wage is the lowest remuneration that employers can legally pay their employees—the price floor below which employees may not sell their labor. Most countries had introduced minimum wage legislation by the end of the 20th century. Bec ...
and the abolition of
untouchability
Untouchability is a form of social institution that legitimises and enforces practices that are discriminatory, humiliating, exclusionary and exploitative against people belonging to certain social groups. Although comparable forms of discrimin ...
and
serfdom
Serfdom was the status of many peasants under feudalism, specifically relating to manorialism, and similar systems. It was a condition of debt bondage and indentured servitude with similarities to and differences from slavery, which develop ...
. Committing themselves to socialism in 1936, the Congress leaders took examples from the
Constitution of the Soviet Union
During its existence, the Soviet Union had three different constitutions in force individually at different times between 31 January 1924 to 26 December 1991.
Chronology of Soviet constitutions
These three constitutions were:
* 1924 Constitu ...
, 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
The Constituent Assembly of India was elected to frame the Constitution of India. It was elected by the 'Provincial Assembly'. Following India's independence from the British rule in 1947, its members served as the nation's first Parliament as ...
, composed of elected representatives under the presidency of
Rajendra Prasad
Rajendra Prasad (3 December 1884 – 28 February 1963) was an Indian politician, lawyer, Indian independence activist, journalist & scholar who served as the first president of Republic of India from 1950 to 1962. He joined the Indian Nationa ...
. 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.
Notably,
B. R. Ambedkar
Bhimrao Ramji Ambedkar (14 April 1891 – 6 December 1956) was an Indian jurist, economist, social reformer and political leader who headed the committee drafting the Constitution of India from the Constituent Assembly debates, served a ...
became the chairperson of the
Drafting Committee, while
Jawaharlal Nehru
Pandit Jawaharlal Nehru (; ; ; 14 November 1889 – 27 May 1964) was an Indian anti-colonial nationalist, secular humanist, social democrat—
*
*
*
* and author who was a central figure in India during the middle of the 20t ...
and
Sardar Vallabhbhai Patel
Vallabhbhai Jhaverbhai Patel (; ; 31 October 1875 – 15 December 1950), commonly known as Sardar, was an Indian lawyer, influential political leader, barrister and statesman who served as the first Deputy Prime Minister and Home Minister of I ...
became chairpersons of
committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the
United Nations General Assembly
The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...
adopted the
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
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.
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
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
, like freedom of speech and religion, were not recognised and protected by the State.
[The term "State" includes all authorities within the territory of India. It includes the ]Government of India
The Government of India (ISO: ; often abbreviated as GoI), known as the Union Government or Central Government but often simply as the Centre, is the national government of the Republic of India, a federal democracy located in South Asia, c ...
, the Parliament of India
The Parliament of India (International Alphabet of Sanskrit Transliteration, IAST: ) is the supreme legislative body of the Republic of India. It is a bicameralism, bicameral legislature composed of the president of India and two houses: the R ...
, the governments and legislatures of the states of India
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
. It also includes all local or other authorities such as Municipal Corporations
A municipal corporation is the legal term for a local governing body, including (but not necessarily limited to) cities, counties, towns, townships, charter townships, villages, and boroughs. The term can also be used to describe municipally owned ...
, Municipal Boards, District Boards, Panchayat
The Panchayat raj is a political system, originating from the Indian subcontinent, found mainly in India, Pakistan, Bangladesh, Sri Lanka, and Nepal. It is the oldest system of local government in the Indian subcontinent, and historical ment ...
s etc. To avoid confusion with the term states and territories of India
India is a federal union comprising 28 states and 8 union territories, with a total of 36 entities. The states and union territories are further subdivided into districts and smaller administrative divisions.
History
Pre-indepen ...
, State (encompassing all the authorities in India) has been capitalised and the term state (referring to the state governments) is in lowercase. 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.
All people, irrespective of race, religion, caste or gender, have been given the right to petition the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
or the
High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty-stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "
public interest litigation The chief instrument through which judicial activism has flourished in India is public interest litigation (PIL) or social action litigation (SAL). ''Public interest litigation'' (PIL) refers to litigation undertaken to secure public interest and de ...
". In some cases, High Court judges have acted
suo moto
In law, ''sua sponte'' (Latin: "of his, her, its or their own accord") or ''suo motu'' ("on its own motion") describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken wi ...
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
Speech is a human vocal communication using language. Each language uses Phonetics, phonetic combinations of vowel and consonant sounds that form the sound of its words (that is, all English words sound different from all French words, even if ...
and
expression
Expression may refer to:
Linguistics
* Expression (linguistics), a word, phrase, or sentence
* Fixed expression, a form of words with a specific meaning
* Idiom, a type of fixed expression
* Metaphorical expression, a particular word, phrase, o ...
, and freedom to reside and settle in any part of the country are reserved for citizens alone, including
non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to
overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits ''
begar
Veth (or ''Vethi'' or ''Vetti-chakiri'', from Sanskrit ''visti''), also known as Begar (from Persian), was a system of forced labour practised in the Indian subcontinent, in which members of populace were compelled to perform unpaid work for the ...
''. 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 that all provisions of the Constitution, including fundamental rights, can be amended, but that
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
cannot alter the basic structure of the constitution. Since the fundamental rights can be altered only by a
constitutional amendment
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, t ...
, their inclusion is a check not only on the
executive branch
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state.
In poli ...
but also on the
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
and state legislatures.
A
state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws that go against the rights given in Article 19. The
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
may by order suspend the right to move the court for the enforcement of other rights as well.
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 and Articles 17–18 which collectively encompass further the philosophy of social equality.
Article 14
''Article 14'' guarantees equality before law as well as equal protection of the law to all people within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.
Article 15
''Article 15'' prohibits discrimination on the grounds of religion, race, caste, sex, place of birth, and also gender or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the
Scheduled Castes
The Scheduled Castes (SCs) and Scheduled Tribes (STs) are officially designated groups of people and among the most disadvantaged socio-economic groups in India. The terms are recognized in the Constitution of India and the groups are designa ...
and
Scheduled Tribes
The Scheduled Castes (SCs) and Scheduled Tribes (STs) are officially designated groups of people and among the most disadvantaged socio-economic groups in India. The terms are recognized in the Constitution of India and the groups are designa ...
. This exception has been provided since the classes of people mentioned are considered deprived and in need of
special protection.
Article 16
''Article 16'' guarantees
equality of opportunity
Equal opportunity is a state of fairness in which individuals are treated similarly, unhampered by artificial barriers, prejudices, or preferences, except when particular distinctions can be explicitly justified. The intent is that the important ...
in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or income. It creates exceptions for the implementation of measures of
affirmative action for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion.
Article 17
''Article 17'' abolishes the practice of
untouchability
Untouchability is a form of social institution that legitimises and enforces practices that are discriminatory, humiliating, exclusionary and exploitative against people belonging to certain social groups. Although comparable forms of discrimin ...
in any form, making it an offense punishable by law. The Protection of Civil Rights Act, 1955 was enacted by Parliament to further this objective.
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
A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is typically authorized and maintained by a sovereign state, with its members identifiable by their distinct ...
and
academic
An academy (Attic Greek: Ἀκαδήμεια; Koine Greek Ἀκαδημία) is an institution of secondary education, secondary or tertiary education, tertiary higher education, higher learning (and generally also research or honorary membershi ...
distinctions can be conferred on the citizens of India. The awards of ''
Bharat Ratna
The Bharat Ratna (; ''Jewel of India'') is the highest Indian honours system, civilian award of the Republic of India. Instituted on 2 January 1954, the award is conferred in recognition of "exceptional service/performance of the highest orde ...
'' and ''
Padma Vibhushan
The Padma Vibhushan ("Lotus Decoration") is the second-highest Indian honours system, civilian award of the Republic of India, after the Bharat Ratna. Instituted on 2 January 1954, the award is given for "exceptional and distinguished service" ...
can be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld the validity of such awards.
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. These include the
freedom of speech and expression
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been ...
,
freedom of assembly
Freedom of peaceful assembly, sometimes used interchangeably with the freedom of association, is the individual right or ability of people to come together and collectively express, promote, pursue, and defend their collective or shared ide ...
without arms,
freedom of association
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membe ...
,
freedom of movement
Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country,Jérémiee Gilbert, ''Nomadic Peoples and Human Rights' ...
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.
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22. The scope of these articles, particularly with respect to the doctrine of
due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
, was heavily debated by the Constituent Assembly. It was argued, especially by
Benegal Narsing Rau
Sir Benegal Narsing Rau (26 February 1887 – 30 November 1953) was an Indian civil servant, jurist, diplomat and statesman known for his key role in drafting the Constitution of India. He was the Constitutional Advisor to Constituent Assembly ...
, 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. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favor of "procedure established by law". 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
''Maneka Gandhi v. Union of India'', AIR 1978 SC 597, was a landmark decision of the Supreme Court of India in which the Court significantly expanded the interpretation of Article 21 of the Constitution of India. It overruled A. K. Gopalan v. Sta ...
'' extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. 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". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, good health, clean environment, water, speedy trial and humanitarian treatment while imprisoned. 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.
[86th Amendment Act, 2002](_blank)
.
Article 20 provides protection from conviction for offences in certain respects, including the rights against
ex post facto law
An ''ex post facto'' law (from ) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may Criminalization, crim ...
s,
double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
and freedom from
self-incrimination
In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incrimination ...
.
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. The Constitution also authorizes the State to make laws providing for
preventive detention
Preventive detention is an imprisonment that is putatively justified for non-punitive purposes, most often to prevent (further) criminal acts.
Types of preventive detention
There is no universally agreed definition of preventive detention, and mu ...
, subject to certain other safeguards present in Article 22. 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. 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.
Right to information (RTI)
Right to information
The Right to Information (RTI) is an act of the Parliament of India which sets out the rules and procedures regarding citizens' right to information. It replaced the former Freedom of information act of 2002 (India), Freedom of Information Act ...
has been given the status of a fundamental right under Article 19(1) of the Constitution in 2005. Article 19 (1) under which every citizen has freedom of speech and expression and the right to know how the government works, what roles it plays, what its functions are, and so on.
Right against exploitation
![ChildLabor1910](https://upload.wikimedia.org/wikipedia/commons/9/95/ChildLabor1910.png)
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. Article 23 prohibits
human trafficking
Human trafficking is the trade of humans for the purpose of forced labour, sexual slavery, or commercial sexual exploitation for the trafficker or others. This may encompass providing a spouse in the context of forced marriage, or the extrac ...
, making it an offence punishable by law, and also prohibits
forced labour
Forced labour, or unfree labour, is any work relation, especially in modern or early modern history, in which people are employed against their will with the threat of destitution, detention, violence including death, or other forms of ex ...
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
Conscription (also called the draft in the United States) is the state-mandated enlistment of people in a national service, mainly a military service. Conscription dates back to antiquity and it continues in some countries to the present day un ...
and
community service
Community service is unpaid work performed by a person or group of people for the benefit and betterment of their community without any form of compensation. Community service can be distinct from volunteering, since it is not always performed ...
. The Bonded Labour System (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. 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.
Right to freedom of religion
The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a
secular state
A secular state is an idea pertaining to secularity, whereby a State (polity), state is or purports to be officially neutral in matters of religion, supporting neither religion nor irreligion. A secular state claims to treat all its citizens ...
in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions equally, impartially and neutrally.
* Article 25 guarantees all persons the
freedom of conscience
Freedom of thought (also called freedom of conscience) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints.
Overview
Every person attempts to have a cognitive proficiency by ...
and the right to preach, practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to
convert
Conversion or convert may refer to:
Arts, entertainment, and media
* "Conversion" (''Doctor Who'' audio), an episode of the audio drama ''Cyberman''
* "Conversion" (''Stargate Atlantis''), an episode of the television series
* "The Conversion" ...
another individual, since it would amount to an infringement of the other's right to freedom of conscience.
* Article 26 guarantees all
religious denomination
A religious denomination is a subgroup within a religion that operates under a common name and tradition among other activities.
The term refers to the various Christian denominations (for example, Eastern Orthodox, Catholic, and the many varie ...
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. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice.
* Article 27 guarantees that no one can be compelled to pay taxes for the promotion of any particular religion or religious institution.
* Article 28 prohibits
religious instruction
A catechism (; from grc, κατηχέω, "to teach orally") is a summary or exposition of doctrine and serves as a learning introduction to the Sacraments traditionally used in catechesis, or Christian religious teaching of children and adult c ...
in a wholly 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.
Right to life
The Constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:
* Protection with respect to a conviction for offences is guaranteed under the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at the time of commission of the crime. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. Compulsion in this article refers to what in law is called
duress
Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...
(injury, beating or unlawful imprisonment to make a person do something that he may not want to do). This article is known as a safeguard against self-incrimination. The other principle enshrined in this article is known as the principle of
double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
, that is, no person can be convicted twice for the same offence, which has been derived from Anglo-Saxon law. This principle was first established in the
Magna Carta
(Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
.
* Protection of life and personal liberty is also stated under the right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by
due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
of law. This means that a person's life and personal liberty can be disputed only if that person has committed a crime. However, the
right to life
The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it as ...
does not include the
right to die
The right to die is a concept based on the opinion that human beings are entitled to end their life or undergo voluntary euthanasia. Possession of this right is often understood that a person with a terminal illness, incurable pain, or without t ...
and hence, suicide or any attempt thereof, is deemed an offence (attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year). In 1996, another Supreme Court ruling nullified the earlier one. But with the passage of the Mental Healthcare Bill 2017, attempted suicide has been decriminalised. "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.
* In 2002, through the 86th Amendment Act, Article 21A was incorporated. It made the right to primary education part of the right to freedom, stating that the state would provide free and compulsory education to children from six to fourteen years of age.
Six years after an amendment was made in the Indian Constitution, the
Union Cabinet
The Union Council of Ministers Article 58 of the ''Constitution of India'' is the principal executive organ of the Government of India, which is responsible for being the senior decision making body of the executive branch. It is chaired by t ...
cleared the Right to Education Bill in 2008.
[right to education bill](_blank)
.
* Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself through a lawyer of his choice. Also, an arrested citizen has to be brought before the nearest
magistrate
The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons under any law providing for
preventive detention
Preventive detention is an imprisonment that is putatively justified for non-punitive purposes, most often to prevent (further) criminal acts.
Types of preventive detention
There is no universally agreed definition of preventive detention, and mu ...
. Under
preventive detention
Preventive detention is an imprisonment that is putatively justified for non-punitive purposes, most often to prevent (further) criminal acts.
Types of preventive detention
There is no universally agreed definition of preventive detention, and mu ...
, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him/her from doing this possible harm. After three months, such a case is to be brought before an advisory board for review, unless specific legislation(s) by Parliament regarding preventive detention do(es) not necessitate scrutiny by such an advisory board.
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.
* 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.
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 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.
* 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.
The term "
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. 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 utilisation of any aid granted by it.
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.
The Supreme Court has been empowered to issue
writs
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
, namely ''
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'', ''
mandamus
(; ) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from ...
'', ''
prohibition
Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption of alcoholic ...
'', ''
certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' and ''
quo warranto
In law, especially English and American common law, ''quo warranto'' (Medieval Latin for "by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right, power, or ...
'', 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
A prerogative writ is a historic term for a writ (official order) that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected ...
s even in cases not involving the violation of Fundamental Rights. 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
In law, ''sua sponte'' (Latin: "of his, her, its or their own accord") or ''suo motu'' ("on its own motion") describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken wi ...
'' or on the basis of a
public interest litigation The chief instrument through which judicial activism has flourished in India is public interest litigation (PIL) or social action litigation (SAL). ''Public interest litigation'' (PIL) refers to litigation undertaken to secure public interest and de ...
. This right cannot be suspended, except under the provisions of Article 226, when a state of emergency is declared.
Dr
B. R. Ambedkar
Bhimrao Ramji Ambedkar (14 April 1891 – 6 December 1956) was an Indian jurist, economist, social reformer and political leader who headed the committee drafting the Constitution of India from the Constituent Assembly debates, served a ...
wanted a specific guarantee of fundamental rights expressly incorporated in the constitution so that it could be easily enforced. He drafted this Article 32.
B. R. Ambedkar
Bhimrao Ramji Ambedkar (14 April 1891 – 6 December 1956) was an Indian jurist, economist, social reformer and political leader who headed the committee drafting the Constitution of India from the Constituent Assembly debates, served a ...
had said, During the Constituent Assembly debates in December 1948, Dr.
Babasaheb Ambedkar
Bhimrao Ramji Ambedkar (14 April 1891 – 6 December 1956) was an Indian jurist, economist, social reformer and political leader who headed the committee drafting the Constitution of India from the Constituent Assembly debates, served a ...
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'.
The right to
constitutional remedies is present for enforcement of fundamental rights.
Right to privacy
The
right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948 ...
is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. It protects the inner sphere of the individual from interference from both State and non-State actors and allows individuals to make autonomous life choices. On 24 August 2017, the Supreme Court of India in its
Right to Privacy verdict
Justice K. S. Puttaswamy () vs Union Of India (2017), also known as Right to Privacy verdict is a landmark decision of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental right under Articles 14 ...
ruled that:
Critical analysis
The fundamental rights have been revised for many reasons. Political and other groups have demanded that the
right to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and should not be prevented from doing so. The right to work is enshrined in the Universal Declaration of Human Rights and recognized i ...
, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity,
though these provisions have been enshrined in the
directive principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus has been criticised for failing to check the sanctioning of powers often deemed "excessive".
There is also the provision of preventive detention and suspension of fundamental rights in times of
emergency
An emergency is an urgent, unexpected, and usually dangerous situation that poses an immediate risk to health, life, property, or environment and requires immediate action. Most emergencies require urgent intervention to prevent a worsening ...
. The provisions of acts like the
Maintenance of Internal Security Act
The Maintenance of Internal Security Act (MISA) was a controversial law passed by the Indian parliament in 1971 giving the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies very broad powers – indefinite pre ...
(MISA),
Armed Forces (Special Powers) Act
Armed Forces (Special Powers) Act (AFSPA), 1958 is an act of the Parliament of India that grants special powers to the Indian Armed Forces to maintain public order in "disturbed areas". According to the Disturbed Areas (Special Courts) Act, 19 ...
(AFSPA) and the
National Security Act (NSA) are a means of countering these fundamental rights, because they sanction excessive powers with the aim of fighting internal and
cross-border terrorism and political violence, without safeguards for
civil rights
Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
.
The phrases "security of State", "public order" and "morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the Constitution, and this ambiguity leads to unnecessary litigation.
The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.
Freedom of press
Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic media, especially published materials, should be considered a right to be exerci ...
has not been included in the right to freedom, which is necessary for formulating
public opinion
Public opinion is the collective opinion on a specific topic or voting intention relevant to a society. It is the people's views on matters affecting them.
Etymology
The term "public opinion" was derived from the French ', which was first use ...
and to make
freedom of expression
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
more legitimate.
Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the Constitution. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. In 2014, India had improved marginally to a rank of 85. The right to equality in matters regarding public employment is not conferred upon
overseas citizens of India, according to the
Citizenship (Amendment) Bill, 2003.
As per
Article 19 of Part III of the Constitution, the fundamental rights of people such as freedom of speech and expression, gathering peaceably without arms and forming associations or unions shall not effect the interests of the sovereignty unity and integrity of India. The words sovereignty and integrity are the qualities to be cultivated/emulated by Indian people as urged by the Constitution but not used related to the territory of India.
Article 1 of Part 1 of the Indian constitution, defines India (Bharat) as a Union of states. In a nutshell, India "is its people, not its land", as enshrined in the Constitution.
Although
speedy trial
In criminal law, the right to a speedy trial is a human right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely. Otherwise, the power to impose such delays would eff ...
is a fundamental right,
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
A legal maxim is an established principle or proposition of law, and a species of aphorism and general maxim. The word is apparently a variant of the Latin , but this latter word is not found in extant texts of Roman law with any denotation exac ...
'
justice delayed is justice denied
"Justice delayed is justice denied" is a legal maxim. It means that if legal redress or equitable relief to an injured party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.
This prin ...
'.
Amendments
Changes to the fundamental rights require a
constitutional amendment
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, t ...
, which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting in support of the amendment shall not be less than the
absolute majority
A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...
of the total members of a house – whether the
Lok Sabha
The Lok Sabha, constitutionally the House of the People, is the lower house of India's bicameral Parliament, with the upper house being the Rajya Sabha. Members of the Lok Sabha are elected by an adult universal suffrage and a first-past ...
or
Rajya Sabha
The Rajya Sabha, constitutionally the Council of States, is the upper house of the bicameral Parliament of India. , it has a maximum membership of 245, of which 233 are elected by the legislatures of the states and union territories using si ...
.
Fundamental rights and its issues
Basic structure doctrine
While deciding the
Golaknath case in February 1967, the Supreme Court ruled that Parliament had no power to curtail the fundamental rights. They were made permanent and sacrosanct, reversing the Supreme Court's earlier decision which had upheld Parliament's power to amend all parts of the Constitution, including Part III related to fundamental rights. Up until the
24th constitutional amendment in 1971, the fundamental rights given to the people were permanent and could not be repealed or diluted by Parliament. The 24th constitutional amendment introduced a new article –
Article 13(4) – enabling Parliament to legislate on the subjects of
Part III of the constitution using its constituent powers per
Article 368 (1). In 1973, a
13 member constitutional bench of the Supreme Court also upheld with majority the validity of the 24th constitutional amendment. However, it ruled that the
basic structure of the constitution, which is built on the basic foundation representing the dignity and freedom of the individual, could not be altered, and that it was "of supreme importance" and could not be destroyed by means of amendment(s) to the Constitution. Many constitutional amendments to Part III of the Constitution were made deleting, adding or diluting the fundamental rights before the judgement of Golaknath case (Constitutional amendments 1, 4, 7, and 16) and after the validity of 24th constitutional amendment was upheld by the Supreme Court (Constitutional amendments 25, 42, 44, 50, 77, 81, 85, 86, 93, and 97).
Validity of Article 31B
Articles 31A and
Article 31B are added by the
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
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 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.
Amendment to Article 31C
Section 4 of the
42nd Amendment, had changed
Article 31C of the Constitution to accord precedence to the
Directive Principles
The Directive Principles of State Policy of India are the guidelines to be followed by the government of India for the governance of the country. They are not enforceable by any court, but the principles laid down there in are considered 'Fund ...
(earlier applicable only to clauses b & c of Article 39) over the fundamental rights of individuals. In
Minerva Mills v. Union of India
''Minerva Mills Ltd. and Ors. v. Union Of India and Ors.'' (case number: Writ Petition (Civil) 356 of 1977; case citation: AIR 1980 SC 1789) is a landmark decision of the Supreme Court of India that applied and evolved the basic structure doct ...
case, the Supreme Court ruled that the amendment to Article 31C was not valid and
ultra vires
('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
.
Right to property
The Constitution originally provided for the
right to property
The right to property, or the right to own property (cf. ownership) is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically h ...
under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The
44th Amendment of 1978 removed the right to property from the list of fundamental rights.
[44th Amendment Act, 1978](_blank)
. A new provision, Article 300-A, was added to the constitution, which provided that "no person shall be deprived of his property save by authority of law". Thus, if a legislator made a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. Furthermore, the aggrieved person would also have no right to move the court under Article 32 due to the right to property no longer being a fundamental right, though it would still be a constitutional one. If the government appeared to have acted unfairly, the action could have been challenged in a court of law by aggrieved citizens before the amendment.
[Tayal, B.B. & Jacob, A. (2005), ''Indian History, World Developments and Civics'', pg. A-33]
The liberalisation of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property.
The Supreme Court had sent a notice to the government questioning why the right should not be brought back, but in 2010, the Court rejected the PIL.
Right to education
The right to education at elementary level has been made one of the fundamental rights in 2002 under the 86th Amendment of 2002.
However this right was brought in to implementation after eight years in 2010. On 2 April 2010, India joined a group of few countries in the world, with a historical law making education a fundamental right of every child coming into force.
The
Right of Children to Free and Compulsory Education Act
The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE) is an Act of the Parliament of India enacted on 4 August 2009, which describes the modalities of the importance of free and compulsory education for chi ...
is said to be of direct benefit to children who do not go to school. This Act provides for the appointment of teachers with the requisite entry and academic qualifications.
Former Prime Minister
Manmohan Singh
Manmohan Singh (; born 26 September 1932) is an Indian politician, economist and statesman who served as the 13th prime minister of India from 2004 to 2014. He is also the third longest-serving prime minister after Jawaharlal Nehru and Indir ...
announced the implementation of the Act. Children, who had either dropped out of schools or never been to any educational institution, would get elementary education as it would be binding on the part of the local and state governments to ensure that all children in the 6–14 age group get schooling. As per the Act, private educational institutions should reserve 25 percent seats for children from the weaker sections of society. The Union and the state governments had agreed to share the financial burden in the ratio of 55:45, while the Finance Commission gave Rs. 250 billion to the states for implementing the Act. The Union government approved an outlay of Rs. 150 billion for 2010–2011.
The school management committee or the local authority would identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training.
See also
*
Lawmaking procedure in India
This is a brief description of the lawmaking procedure in India.
Government
The laws of India are made by the union government for the whole country and by the state governments for their respective states as the Parliament of India, i.e. the Lo ...
*
President's rule
In India, President's rule is the suspension of state government and imposition of direct Union government rule in a state. Under Article 356 of the Constitution of India, if a state government is unable to function according to Constitutional ...
*
President of India
The president of India ( IAST: ) is the head of state of the Republic of India. The president is the nominal head of the executive, the first citizen of the country, as well as the commander-in-chief of the Indian Armed Forces. Droupadi Murmu ...
*
Federalism in India
Federalism in India refers to relationship between the Central Government and the State governments of India. The Constitution of India establishes the structure of the Indian government. Part XI of the Indian constitution specifies the distr ...
*
Part I of the Constitution of India
Part I—The Union and Its territories is a compilation of laws pertaining to the constitution of India as a country and the union of states that it is made of.
This part of the Indian constitution contains the law in establishment, renaming, m ...
*
List of amendments of the Constitution of India
As of October 2021, there have been 105 amendments of the Constitution of India since it was first enacted in 1950.
There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by ...
*
List of Acts of the Parliament of India
This is a chronological, but incomplete list of Acts passed by the Imperial Legislative Council between 1861 and 1947, the Constituent Assembly of India between 1947 and 1949, The Provisional Parliament between 1949 and 1952, and the Parliament ...
*
Secularism
Secularism is the principle of seeking to conduct human affairs based on Secularity, secular, Naturalism (philosophy), naturalistic considerations.
Secularism is most commonly defined as the Separation of church and state, separation of relig ...
*
The Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
References
Sources
*
*
*
*
{{Government of India
Constitution of India
National human rights instruments
Human rights in India