The chapter provides an explanation about the rights of the Indian constitution, why they are necessary?. It also defines various types of rights like legal, fundamental and state rights. The chapter also highlights the topics about preventive detention & writ jurisdiction.
What is the “BILL OF RIGHTS”?
A list of rights mentioned and protected by the constitution is called the bill of rights. Democracy must ensure that individuals have certain rights and that the government will always recognize these rights.
It Prohibits the government from thus acting against the rights of the individuals and ensures a remedy in case there is a violation of these rights.
The Fundamental Rights have been described in ‘Articles 12- 35’ also in ‘Part-3’ of the constitution.
Part-3 of the constitution is rightly described as the Magna Carta of India
Fundamental Rights In the Indian Constitution
The Motilal Nehru committee had demanded a bill of rights as far back as 1928. The Constitution listed the rights that would be specially protected and called them fundamental rights. Fundamental Rights are so important that the Constitution has separately listed them and made special provisions for their protection.
The Constitution ensures that fundamental rights are not violated by the government.
Ordinary Rights & Fundamental Rights
Ordinary legal rights are protected & enforced by ordinary law. It may be changed by the legislature by the ordinary process of lawmaking.
Fundamental Rights are protected and guaranteed by the constitution of the country. These rights may only be changed by amending the Constitution itself.
Judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government, Executive, as well as legislative actions, can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner.
Fundamental Rights
Right to Equality: (Articles 14 to 18)
Article 14: Equality before law Equal protection of laws
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Article 16: Equal access to shops, hotels, wells, tanks, bathing Ghats, roads etc & Equality of opportunity in public employment
Article 17: Abolition of Untouchability
Article 18: Abolition of titles
Right to Freedom: (Articles 19 to 22)
Article 19: This article guarantees freedom to the citizens of India.
Freedom of speech and expression
Assemble peacefully
Form associations/unions
Move freely throughout the territory of India
Reside and settle in any part of India
Practice any profession, or carry on any occupation, trade or business.
Article 20: Protection in respect of conviction
Article 21: It gives protection of life and personal liberty to both citizens and non-citizens.
Article 20 & 21 remain in force even during emergency
Article 21 (A): Right to Education from 6 to 14 years, made a fundamental right by 86th Amendment. 2002.
Article 22: It protects against arrest and detention in certain cases.
Right against Exploitation: (Article 23 & 24)
Article 23: Prohibition of traffic in human beings and forced labour
Article 24: Prohibition of employment of children in hazardous jobs
Right to Freedom of Religion: (Article 25 to 28)
Article 25: Freedom of conscience and free profession, practice and propagation of religion
Article 26: Freedom to manage religious affairs
Article 27: Freedom to pay taxes for promotion of any particular religion
Article 28: Freedom to attend religious instruction or worship in certain educational institutions.
Cultural and Educational Rights: (Article 29 & 30)
Article 29: Protection of language, culture or script to every culture
Article 30: Right of minorities to establish educational institutions
Right to Constitutional Remedies: (Article 32)
Article 32: Right to move to the court to issue direction/orders/writs for enforcement of right
Overview of Rights
The Constitution clarifies that the government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes.
Article 16(4) of the constitution explicitly clarifies that a policy like reservation will not be seen as a violation of the right to equality.
If you see the spirit of the Constitution, this is required for the fulfilment of the right to equality of opportunity. The right to freedom of speech and expression is subject to restrictions such as public order, peace and morality etc.
Freedom to assemble too is to be exercised peacefully and without arms. The government may impose restrictions in certain areas declaring the assembly of five or more persons as unlawful.
What is Preventive Detention?
A person would be arrested on the apprehension that he or she is likely to engage in unlawful activity
Sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in an unlawful activity and imprisoned for some time.
This is known as preventive detention:
A person can be arrested without a formal charge.
Detention can be up to ‘Three Months’.
It means that if the government feels that a person can be a threat to law and order or the peace and security of the nation, it can detain or arrest that person.
The Jammu & Kashmir Public Safety Act, 1978 is a preventive detention law. A person is taken into custody to prevent him/her from acting in a manner that is a threat to the security of J&K.
What are the Rights of the Accused?
To ensure a fair trial in courts, the Constitution has provided three rights:
No person would be punished for the same offence more than once.
No law shall declare any action as illegal from a backdate, and
No person shall be asked to give evidence against him or herself Freedom of faith and worship.
What are the limitations on the ‘Freedom of Religion’?
Freedom of religion also includes the freedom of conscience. It means that a person may choose any religion or may choose not to follow any religion.
Freedom of religion includes the freedom to profess, follow and propagate any religion.
Limitations:
The government can impose restrictions on the practice of freedom of religion to protect public order, morality and health.
It is not an unlimited right.
The government can interfere in religious matters for rooting out certain social evils:
The Constitution does not allow forcible conversions.
The Constitution gives us the right to spread information about our religion and thus attract others to it.
Cultural & Educational Rights
It allows every community to conserve its distinct language, script or culture. It also bars disallowing a citizen admission to any educational institution maintained or aided by the state only on grounds of religion, race, caste, gender.
‘Article 30’ of the constitution also gives the right of minorities to establish and administer educational institutions.
Right to Constitutional Remedies
Heart and soul of the Indian constitution ~ BR Ambedkar
This right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation. The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.
The courts can issue various special orders known as writs:
Habeas corpus: This means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.
Mandamus: Issued when the court finds that a particular officeholder is not doing legal duty and thereby is infringing on the right of an individual.
Prohibition: Issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.
Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an officeholder.
Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court
National Human Right Commission (NHRC)
The Commission‘s functions include inquiry at its own initiative or on a petition presented to it by a victim in the complaint of a violation of human rights.
Visit jails to study the condition of the inmates.
Undertaking and promoting research in the field of human rights.
The Commission does not have the power of prosecution. It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.
Directive Principles Of State Policy
The chapter on Directive Principles lists mainly three things:
The goals and objectives that we as a society should adopt;
Certain rights that individuals should enjoy apart from the Fundamental Rights.
Certain policies that the government should adopt.
What is the relationship between Fundamental Rights and Directive Principles?
Fundamental Rights restrain the government from doing certain things while Directive Principles exhort the government to do certain things.
Fundamental Rights mainly protect the rights of individuals while Directive Principles ensure the well-being of the entire society.
Right to Property
In the Constitution, originally, there was a fundamental right to acquire, possess and maintain the property. The Constitution made it clear that property could be taken away by the government for public welfare.
In 1973, the Supreme Court gave a decision that the right to property was not part of the basic structure of the Constitution and therefore, parliament had the power to abridge this right by an amendment.
In 1978, the 44th amendment to the Constitution removed the right to property from the list of Fundamental Rights and converted it into a simple legal right under Article 300A.
Fundamental Duties
The fundamental duties in the constitution serve as a reminder to the citizens that while enjoying their rights, they should be conscious of the duties of their duties towards their country. They were formed on the recommendations of the Swaran Singh Committee.
They were added by 42nd Amendment Act, 1976 under ‘Article 51 A’.
They are as follows:
Abide by the Indian Constitution and respect its ideals and institutions, the National Flag and the National Anthem
Cherish and follow the noble ideals that inspired the national struggle for freedom
Uphold and protect the sovereignty, unity and integrity of India
Defend the country and render national service when called upon to do so
Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and renounce practices derogatory to the dignity of women
Value and preserve the rich heritage of the country’s composite culture
Protect and improve the natural environment including forests, lakes, rivers and wildlife and have compassion for living creatures
Develop scientific temper, humanism and the spirit of inquiry and reform
Safeguard public property and abjure violence
Strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement
Provide opportunities for education to his child or ward between the age of six and fourteen years. (This duty was added by the 86th Constitutional Amendment Act, 2002)
