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FUNDAMENTAL RIGHTS

PUBLISHED BY: SURENDER KUMAR
OCTOBER 25, 2012

   
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FUNDAMENTAL RIGHTS

 

The Constitution provides many Fundamental Rights in Part III to act as limitations on the Executive (government) as well as Legislature (law-making). Though the rights are based on the US pattern, our Constitution makes a compromise between the principles of Parliamentary Sovereignty and Judicial Supremacy. In the US, the American President enjoys the power to nullify any decision made by the Federal Court while in the UK, whatever the Parliament says, is law. The Indian Constitution adopts a via-media (middle path) between these two extremes. 

 

 

Herein follows a survey of some major Fundamental Rights granted under the Indian Constitution.

 

 

ARTICLE 14

Says that the State shall guarantee equality to all persons before law or the equal protection of the laws within the territory of India.

 

 

It debars the State from making any special privileges in favour of or any discrimination against any person during  the application of any law in India.

 

The only exceptions to this provision are that

 

 

1. The President / Governor are not answerable to any Court for performing their official duties

 

2. No criminal proceedings can be started or continued against any sitting President / Governor.

 

3. Only civil petitions (claiming compensation) can be filed against a sitting President or a Governor through a proper written notice to his office.

 

4. Foreign ambassadors and other Sovereigns also enjoy this protection.

 

 

ARTICLE 15

Says that

 

1. the State shall not discriminate against any citizen on the grounds ONLY of religion, race, caste, sex, place of birth or any of them.

 

2. No citizen can be denied access to

 

shops, public restaurants, hotels and places of public entertainment on any of the above grounds .

 

 

However, the State is authorized to make any special provisions for special sections of the society considering their social conditions. Exercising this power, the government has made certain special provisions for women in India. For instance, the job reservations for SC/STs, criminal immunity for women in adultery cases etc.

 

 

ARTICLE 16

Provides for equality of opportunity in matters of public employment i.e. government service and prohibits any discrimination in this matter on the grounds ONLY of religion, race, caste, sex, descent, place of birth or any of them.

 

 

This article does not prohibit any reservation/preferential treatment for any class of citizens who are underprivileged or depressed, for instance SC/STs, OBCs etc.

 

 

 

ARTICLE 17

Prohibits untouchability in any form in India.  Any person

 

1. refusing admission to any person to any hospital, dispensary or educational institution    or

 

2. preventing any person from worshipping or offering prayers in any place of worship          or

 

3. insulting a member of the Scheduled Castes on grounds of untouchability                         or

 

4. justifying or preaching untouchability  in any form                                                                 

 

 

is punishable under the Prevention of Untouchability Act, 1955.

 

 

 

ARTICLE 18

Abolishes all titles which can be used as an addition to one’s name. However, this does not prevent the universities, the military or the government from conferring any honour on men of merit. In case of military or academic titles, the use of the title with the name of the person is allowed.

  

 

 

ARTICLE 19 - The Six Freedoms

All citizens shall have the right to

 

a.     freedom of speech and expression

 

b.     assemble peacefully and without arms

 

c.     form associations or unions

 

d.     move freely throughout the territory of India

 

e.     reside or settle in any part of India

 

f.      practice any profession, occupation or business

 

 

The government can impose any reasonable restrictions on any of these rights in the interests of law, public order, unity and integrity of India, friendly relations with foreign countries, decency or morality. It is to be noted that the Press in India derives its right to free expression from this article only. There is no separate article dealing with freedom of the Press in India.

 

 

 

ARTICLE 20

Prohibits


1. retrospective criminal legislation. The government cannot make any criminal law effective from a previous date

 

2. double punishment (double jeopardy) for the same offence.


 

 

ARTICLE 21

Guarantees personal liberty by providing that

 

No person can be deprived of his life or personal liberty except according to law.

 

 

 

ARTICLE 22

Contains safeguards against unreasonable arrest and detention by saying that

 

 

1. No such person, who is arrested, shall be detained in custody without being informed, as soon as possible, of the grounds for such arrest.

 

2. Such a person has a right to seek legal advice and consultation

 

3. The person concerned has to be produced in a Court of Law within 24 hours of arrest.

 

 

 

ARTICLE 23

Prohibits exploitation of humans beings as bonded labour, begaar or similar forms of unpaid, involuntary service. However, the government can require all able-bodied citizens to perform compulsory military duties in times of war, if need be.

 

 

 

ARTICLE 24

Bans the employment of any child below 14 years in any factory, mine or any other dangerous employment.

  

 

 

ARTICLE 25

India is a secular state i.e. is impartial and neutral towards all religions. The policy of secularism is made clear by provisions like

 

1. There is no “state” religion in India (as is there in Pakistan, Sri Lanka and many other countries).

 

2. Every person is guaranteed the right to adopt, observe and propagate any religion of his liking subject only to public order, morality and health

 

3. No religious education can be provided in any educational institution financed wholly by the government.

 

 

 

ARTICLE 29

Says that the government will not impose upon a minority any culture other than the community’s own culture.

 

 

 

ARTICLE 30

Gives religious minorities the right to run their educational institutions the way they like and the government cannot discriminate against them in the matter of financial grants.

 

  

 

ARTICLE 32

Provides constitutional remedies for enforcement of fundamental rights granted in the Constitution.

 

The article says that 

 

The right to move the Supreme Court for the enforcement of any of the fundamental rights is guaranteed. Consequently anyone who feels that any of his fundamental rights has been violated, can file a suitable writ petition in the Supreme Court directly to seek justice. Such appeals, however, can be made to the High Courts also under Art. 226.

 

 

Five major types of writ petitions can be filed under this provision to secure fundamental rights:

 

 

1. Habeas Corpus: Literally, it means to produce the body of the person. This can be used in cases where a person has been arrested and detained without any lawful authority. In such cases, the Court can order the person’s release if the reasons for his arrest and detention are insufficient.

 

 

 

2. Mandamus: Means a command and requires some activity on the part of the person to whom it is addressed. Briefly, it commands the person to perform some public or quasi-public legal duty which he has failed to do.

 

 

 

3. Prohibition: The writ of prohibition is issued by the Supreme Court / High Court to a lower court forbidding it to continue proceedings beyond its powers in a case or assume illegally a power which it does not enjoy under the law.

 

 

 

4. Certiorari: Means quashing the decision of a judicial tribunal so that its jurisdiction is properly used.

 

 

 

5. Quo Warranto: This proceeding applies wherein the Court enquires into the legality of a claim made by a party to a public office (the office must be created by a law or the Constitution).

 

 

The Fundamental Rights can be suspended only during an Emergency by a Presidential order.



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