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					                          FUNDAMENTAL RIGHTS & HUMAN RIGHTS


                                                                       Dr. S.G. Bhat
                                                                       Vicechancellor (NUALS)

       Fundamental Rights are rights having a noble pedigree. They are secured and guaranteed
rights. The Constituent Assembly was determined to safeguard certain rights and accordingly
incorporated them in part III of the constitution. The fundamental rights are distinguishable from
ordinary legal rights. Fundamental right is protected and enforced by the constitution. An ordinary
legal right for example right of a consumer, shareholder, mortgager etc. is protected and enforced
by the ordinary law of the land. Ordinary right can be changed by the common legislative process.
Fundamental right can be altered only by constitutional amendment. Further a fundamental right
can be suspended or abridged only in the manner prescribed by the constitution. An ordinary right
generally imposes a corresponding duty on any other individual but a fundamental right is a right
which an individual possess against the state. Fundamental rights are protected against the invasion
by the executive, legislature and judiciary as well. Laws and executive actions, which abridge or
are in conflict with such rights are void and ineffective.       All constitutional rights are not
fundamental rights, for example right not to be subjected to taxation without an authority of
law(Article 265); Right to Property (Article 300 A); Freedom of Trade(Article 301). All
fundamental rights are limitations on the legislative power.


       In Shankari Prasad Case, it was held that Fundamental rights are subject to amending the
power of the parliament under Article 368. In other words, ordinary laws cannot amend the
fundamental rights but constituent laws can.


       In Gholaknath’s case the earlier decisions were overruled and court took the view that
fundamental rights had been given a transcendent position by the constitution and no authority
including the parliament acting under the Article 368 has the power to abridge or takeaway any of
the fundamental rights.


       In Keshavananda Bharati, court stated that parliament has the competence to amend the part
containing the fundamental rights just like any other part of the constitution. But by amending
constitution, the parliament cannot abridge, abrogate or destroy the basic structure, which also is
called as basic feature of the constitution.
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       In Minerva Mills case, the court struck down the validity of Clause (4) of Article 368,
which was inserted by virtue of 42nd amendment in 1976 as it purported to destroy judicial review,
which is considered as one of the basic features of the Constitution. Later Supreme Court of India
held in a series of decisions that equality, judicial review, federalism, secular character, supremacy
of the Constitution, democratic form of Government, separation of powers are some of the basic
features of the Constitution.


Classification of Fundamental Rights
   The constitution classifies the rights under six heads (Originally there were seven rights
including right to property which has been deleted by the 44th amendment).


   1) Right to equality (Article 14 to 18)
   2) Right to freedom (Article 19 to 22)
   3) Right against exploitations (Article 23 – 24)
   4) Right to freedom of religion (Articles 25 – 28)
   5) Cultural and educational rights (Articles 29-30)
   6) Right to constitutional remedies (Article 32)


Right to Equality
   Article 14 states that the state shall not deny to any person equality before the law or equal
protection of the laws within the territory of India. In the case of Indira Sawhni, it has been held
that the principle of equality enshrined in Article 14 is a basic feature of the constitution. The
protection is given to any person whether he is citizen or not under Article 14 of the constitution.
It is more or less identical to the 14th Amendment to the U.S. constitution, which says, “no state
shall deny to any person within its jurisdiction the equal protection of the law”. The second
expression equal protection of the laws means that the same laws shall apply to all who are
similarly situated. In another words the rule is that like should be treated alike. Article 14 does not
lay down that all laws must be of universal application. The state has the power to classify persons
for legitimate purposes. The Courts have uniformly stated that reasonable classification is not
prohibited. A classification to be reasonable must fulfil two conditions;


   1) The Classification must be based on an intelligible differentia, which distinguishes those
       who are grouped together from those left out of the group.
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   2) The differentia must have a rational relation to the object sought to be achieved by the Act.


   Any action that does not confirm to the rules of natural justice is held as infringing Article 14.
If a person is not given an opportunity to be heard before decision is taken, then the requirement of
natural justice is not complied with.


   Legislation, which confers on the executive or administrative authority an unguided or
uncontrolled discretionary power in the matter of application of law or allows it to select cases
violates Article 14.


Particular application of right to Equality
       Article 14 states the principle of equality in a general form. Article 15 is a particular
application of the right to equality.


       Article 15 and 16 confer a right only on the citizens and deal with particular aspects of
equality. Article 15 prohibits discrimination by the state on any of the specified grounds namely
religion, race, caste, sex or place of birth. Article 16 is applicable incase of employment under the
state. Clause(1) of the Article 15 is a mandate to the state not to discriminate against a citizen on
grounds only of religion, race etc. Clause (2) of the Article 15 prohibits both the state and private
persons from making discrimination in regard to access to shops, hotels and places of public
entertainment or to the use of wells, tanks and other places of public resort. Clause (3) empowers
the state to make special provisions for the protection of women and children. Clause (4) enables
the state to make special provisions for the advancement of socially and educationally backward
classes of citizens or for the scheduled caste and tribes for example reservation of seats in public
educational institutions. This Clause was inserted by way of an amendment in 1951 to overcome
the judgement of the Supreme Court in Chempakam v State of Madras. Section 16 also has been
drastically amended. Clause (4) of Article 16 permits reservation in favour of backward classes but
no such reservation can be made in favour of women. There cannot be therefore relaxation of rules
of recruitment or in regard to qualifications favouring the women. Women as a class cannot be
regarded as backward. In a leading case namely Indira Sawhni v Union of India Supreme Court
has interpreted Clause (4) of Act 16 and has laid down certain important principles to be followed
by the executive. It has been also stated that persons whose income exceed certain limits are to be
excluded from Backward Class, who are known as creamy layer. Ordinarily reservation should not
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exceed 50 percent. However 50 percent normal rule may be exceeded in extra ordinary cases,
which must be justified. The decisions in this case has been confirmed in another leading case
decided in 2006 namely M. Nagaraj v Union of India. The Supreme Court had added one more
rider stating that the state has to justify the existence of backwardness before contemplating
reservation to such castes including scheduled castes and scheduled tribes. Court also stated that
there cannot be reservation in case of appointment by way of promotion.


          Article 17 abolishes untouchability and prohibits its practice in any form. Article 18 has
abolished the acceptance of any kind of title from any foreign state.


Right to freedom
          Articles from 19 to 22 of the constitution speaks about various freedoms recognised and
available to citizens. Article 19 mentions six freedoms namely;


    (1) Freedom of speech and expression
    (2) Freedom to assemble peaceably and without arms.
    (3) Form association or unions
    (4) To move freely through out the territory of India.
    (5) Reside and settle in any part of the territory of India; and
    (6) To practice any profession or to carry on any occupation, trade or business.


          The freedom to acquire, hold and dispose of property has since been abolished by virtue of
44th amendment in 1978. The object of Article 19 is to provide protection to citizens from state
action.     The action may be legislative or executive.       A foreigner, a company, a municipal
committee, a deity cannot seek to enforce these rights. A corporation also not being a citizen
cannot claim any of the rights included in Article 19 even though all its shareholders may be
citizens.


          However the enjoyment of these freedoms are subjected to limitations laid down in Clause 2
to 6 of Article 19. This restrictions are the only grounds available to the state to control a freedom
given in the Article. The restrictions strike a balance between the freedom of the individual and his
duties to the community. To cite a few instances,
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    a) Prohibition of advertisements by a person claiming to cure a disease by magic.
    b) Pre-censorship of films
    c) Temporary orders prohibiting meetings or processions under Section 144 Cr..P.C.(Criminal
        Procedure Code)
    d) Requirement of possessing a passport for entry into India.


        There is no exact standard of reasonableness. Each case has to be judged on its merit. The
standard varies with the nature of right infringed, the purpose of the limitations, the evil sought to
be remedied, the prevalent conditions, the extent of imposition etc. Restrictions must be reasonable
from the substantive as well as procedural stand point. The state is permitted to put reasonable
restrictions on the exercise of this freedom on the grounds of;


    a) Sovereignty and integrity of India;
    b) Security of the state;
    c) Friendly relations with foreign states;
    d) Public Order;
    e) Decency or morality;
    f) Contempt of Court;
    g) Defamation;
    h) Incitement to an office


        Article 19 (1)(b) is the repository of the Right to assemble. Meetings are the most common
form of coming together. It also includes the right to hold demonstrations and take out processions.
This right is subject to reasonable restriction in the interest of;


        a) The sovereignty and integrity of India and
        b) Public order


        This Article does not afford protection to a violent or riotous assembly or to one, which
bears arms.


        Article 19 (1)(c) confers on the citizens the right to form Association or Unions. It includes
the right to start an Association and to continue it. The right to form Companies, Societies,
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Partnership, Trade Unions, Clubs etc. is conferred by this Article. This right may be limited, as
provided in Article 19(4), by imposing reasonable restrictions in the interest of


            a) Sovereignty and integrity of India
            b) Public Order and
            c) Morality


       The Government cannot compel a citizen to withdraw from membership of Union. Under
the Criminal Law Amendment Act (as amended in Madras) it was left to the Government to
determine in a subjective manner whether an Association constituted danger to public peace.


       The fundamental rights may be curtailed in their application to the armed forces and their
services mentioned in Article 33. Certain civil employees working as cooks, mechanics, tailors etc.
attached to defence establishments claimed the right to form Association as they were non-
combatants. The Supreme Court rejected their contention and held that they are members of the
defence service within the meaning of Article 33 and consequently their right can be curtailed.
However recognition of Association is not a fundamental right.


       The freedom of movement has three aspects:


       a) The right to move inside the country;
       b) The right to move out of the country; and
       c) The right to come back to the country


       It is the first aspect, which is covered by Article 19(1)(d), and the second has been protected
by Article 21. Limitations on this right must be within the parameters of Clause(5). This Clause
allows the state to restrict the right on two grounds viz:


       a) In the interest of General Public;
       b) For the protection of interest of any Scheduled Tribe.


       Article 19(1) (e) guarantees the right to reside and settle in any part of India. To some
extent this right and the freedom of movement are overlapping. However, they may be regarded as
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complementary. This freedom can be subjected to the same restrictions as the freedom of the
movement because the grounds of restrictions are contained in Article 19(5) for both the freedoms.
An Act which empowers the State Government to issue an order requiring a person to reside and
remain in the specified place or an order directing the person to leave a place and go to another
place imposes unreasonable restrictions.


       Article 19(1) (f) has been omitted by the 44th amendment Act 1978. In the result a citizen
has no fundamental right to acquire, hold and dispose of property. By the same amendment, Article
300(A) has been inserted which safeguards that a person can be deprived of his property only by a
law made by the legislature and not by an executive fiat. By virtue of Article 19(1) (g) the freedom
of profession, trade, business and occupation have been protected. These Four expressions though
appear to be similar, they are not identical. The object is to make the right comprehensive and
wide. It covers all the avenues and methods by which a person earns his livelihood. This freedom
may be restricted on the following grounds:


               (a) Interest of the general public;
               (b) Prescribing professional or technical qualifications;
               (c) Creating partial or complete monopoly favouring the state.


       The right does not include the freedom to carry on a profession or trade which is immoral or
injurious to health, safety and welfare of the people. For example a ban on sale of lotteries is
within the ambit of Article 19(6). A temporary law controlling the supply and distribution of an
essential commodity is constitutionally valid.


       Article 20 mainly provides for protection in respect of conviction for offences. It has three
Clauses. Clause (1) spells out the prohibition against retrospective penal laws. Article 20 (1) lays
down two limitations on the legislature, namely;


            d) Prohibition against enacting expost-facto penal law
            e) A law cannot aggravate the crime. A law cannot also change punishment and make
               it greater and apply it to previous offence.
            f) Article 20 (1) does not permit retrospective application of increased penalty.
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       Article 20(2) states that no person shall be prosecuted and punished for the same offence
more than once. This is commonly called double-jeopardy. Double-jeopardy has two aspects
namely:
                      (a) Autrefois convict; and
                      (b) Autrefois acquit
       The plea of Autrefois convict avers that the dependent has been previously convicted in
respect of the same offence and Autrefois acquit is the plea that the accused has been acquitted on a
charge for the same offence for which he is being prosecuted. The protection against Autrefois
acquit is a statutory right not a fundamental right.
       Clause (3) of Article 20 is an attempt to prevent torture of the accused by investigating
agencies for the purpose of extracting confession from him. This is mainly based on the provisions
in the Universal Declaration of Human Rights, which proclaims that no one shall be subjected to
torture or too cruel, inhuman or degrading treatment or punishment (Article 5). The protection is
against compulsion to be a witness. However if an accused voluntarily makes an incriminating
statement, it can be used against him.


Right to Life and Personal Liberty
       Article 21 is one of the most important Articles as it deals with person’s life and liberty. It
states that, “No person shall be deprived of his life or personal liberty except according to
procedure established by law”. The Supreme Court has brought by virtue of its interpretations, all
conceivable human rights within its ambit. On a plain reading, it is a directive to the state to refrain
from infringing the right to life or personal liberty of a person. The courts have taken a very liberal
view and transformed the negative injunction to positive mandate to do all things, which will make
the life worth-living. The change of attitude of the Supreme Court from A.K. Gopalan’s case to
Maneka Gandhi’s case has led to many victories for the common man.
       The word deprived does not mean total loss. Any restriction imposed on the liberty is a
deprivation. Life is not mere animal existence or survival. It would include the right to live with
human dignity and all those aspects of life, which go to make a man’s life meaningful, complete,
worth-living.   The expression personal liberty covers a wide variety of rights, which go to
constitute the personal liberties of man other than those, which are already included in Article 19.
It was held by the courts that Article 21 is the soul repository of the right to life and personal
liberty. When the right was suspended during emergency, the person deprived of his liberty had no
legal standing to file a writ petition. After the emergency, the Janatha Government, which came to
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power in India amended the Constitution so that the traumatic experience may not be repeated.
After the 44th amendment the enforcement of Article 21 cannot be suspended by a presidential
order. In other words even during the operation of an emergency the individual has the right to
challenge any law or executive order on the ground of contravention of Article 21. The Article 21
thus guarantees right to life and personal liberty.
       By virtue of 86th amendment, a new Section namely Section 21 A has been inserted, which
speaks about right to education. It says that the state shall provide free and compulsory education
to all children of the age of six to fourteen years in such a manner as the state may by law,
determine. Right to education was hitherto considered as Directive principles of state policy and it
was left to states discretion to implement subject to its economic position. However by inclusion of
this provision in part III of the constitution, education for children has become a fundamental right.
       Right to get protection against arrest and detention in certain cases has been provided in
Article 22 of the constitution. This Article has two parts Clause (1) and (2). The first part applies
to all arrests made under any law except under law of preventive detention. The rights flowing
from this Article incase of ordinary arrests are:
   (1) Right to be informed of the ground of arrest;
   (2) Right to consult and to be defended by a lawyer;
   (3) Right to be produced before a magistrate within 24 hours of his arrest;
   (4) Right not to be detained for more than 24 hours without the authority of a magistrate.
       However the above rights are not available to,
           a) an enemy alien; or
           b) A person detained under a law of preventive detention.
       The second part of Article 22 comprising of Clause 4 and 5 provide the safeguards to
detenues under the law for preventive detention.          It is noteworthy that these safeguards are
available even to enemy aliens. Infact very few countries have adopted these clauses in their
Constitution. The preventive detention is unknown to America. It was resorted to in England only
during the wartime. Our constitution considers that preventive detention as a necessity. However
there are limitations to prevent any misuse under various enactments proclaimed under the
constitution. Some of the safeguards are;
                     1) If the detention is for more than three months, the matter must be referred
                         to an Advisory Board. His detention may be continued only where the
                         Advisory Board considers that there are sufficient grounds for the
                         detention;
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                      2) Grounds of detentions must be communicated to the detenue;
                      3) The detenue must be given an opportunity to make a representation against
                           the order of detention.
Right against exploitations
        Article 23 and 24 constitute a ground under the head ‘Right against Exploitation’.
        Article 23 prohibits traffick in human beings, begar and all other forms of forced labour.
Selling a human being or pledging the service of a human being for a consideration, living on the
earnings of a prostitute are examples of trafficking. Begar is a peculiar Indian system. The
Government or the local landlords used to requisition persons to carry goods. Later they were
forced to do any work. No remuneration was paid. Forcing a person to work against his will
without payment is a form of exploitation of the weak, which is known as begar. The Parliament
had enacted two enactments of employment. The provisions under this Article namely;
    (1) The immoral traffick (Prevention Act 1956).
    (2) The Bonded Labour System (Abolition Act 1976)
        Article 24 prohibits employment of children below the age of fourteen years in any
            (a) Factory,
            (b) Mine or
            (c) Other hazardous employment
        The Employment of Children Act 1938, the Child Labour (prohibition and regulation) Act
1986, the Factory’s Act 1948, the Mines’ Act 1953 etc prohibit the employment of children below
certain age. The employment of children in shops, restaurants and also as servants in the house are
strictly prohibited at present.


Freedom of Religion
        The Constitution of India since its inception proclaimed that its purpose is to secure to all its
citizens liberty of thought, expression, beliefs, faith and worship. The preamble read with Article
25 to 28, guaranteed equity in the matters of faith and religion. The word “Secularism” was added
to the preamble by virtue of 42nd amendment to make it more explicit. Secularism means that the
state shall observe an attitude of neutrality and impartiality towards all religions. However we have
differed partly from the position prevailing in Europe. In Europe, the secular state was as a result
of revolt against the authority of the Pope who was the religious head of the Christians and was to
be obeyed by the kings. Gradually the rulers became independent and in the process some rulers
became the religious heads of their country and did not accept the jurisdiction of the Pope. The
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queen of England is the head of the Church of England, which is established by the state. In India,
the Hindus constitute a majority. However the Constitution guarantees the minority religions to
enjoy full freedom.        This is in contrast to our neighbours namely Pakistan, Bangladesh,
Afghanistan and the middle east and also other countries like Iran, Iraq, Jordan, Saudi Arabia etc.
which being a Muslim majority country have declared themselves as Islamic Republic or Kingdom
and have by law and practice denied religious freedom to other communities. Secularism does not
require the state to be hostile to religion. If a person is a devote Hindu, he does not cease to be
secular. The rights given by Article 25 and 26 are not absolute. Firstly they are subject to public
order morality and health. It was canvassed before Supreme Court that the right to propagate
religion includes the right to convert. This contention was rejected. Many states also have passed
legislations making it a penal offence to convert a person by means of force, fraud or allurement.
No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion
or belief of his choice.
          Religion has not been defined in the constitution. Religion is not susceptible to a precise
definition. It is a matter of faith and belief and comprise of various rituals and observances, which
are considered as integral part of that religion by those who follow it. In order to maintain
communal harmony and peace, the state can impose reasonable restrictions on any religion.
However the state cannot interfere with the accepted religious practice.
Cultural and Educational Rights
          Article 29 and 30 confers certain rights on the minorities. Article 29 though includes
citizens as a whole, and confers on them certain advantages, Article 30 provides for certain specific
rights to minorities. Article 29 states that ‘any section of the citizens residing in the territory of
India or any part thereof having a distinct language, script or culture of its own shall have the right
to conserve the same’. Article 30 Clause(1) specifically says that all minorities, whether based on
religion or language, shall have the right to establish and administer educational institutions of their
choice.
          No discrimination can be made on the ground that an institution is owned or administered
by minorities. Article 30(2) states that ‘the state shall not, in granting aid to educational institutions
discriminate against any educational institutions on the ground that it is under the management of a
minority, whether based on religion or language’. The legal position is that, the state cannot
impose any restriction on the right of the minorities to administer educational institutions so long as
such institutions are unaided by the state, except to a limited extent that regulations can be made for
ensuring excellence in education. The constitution has not defined the words minority and minority
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educational institutions. It is also to be noted that by virtue of several decisions, minorities have
been conferred more rights than the majority. It may be said that the provisions have given birth to
minorityism, which has added to the division of the country on this line also which is not a healthy
trend. The preamble proclaims the ideal of unity and integrity of the nation. Article 14 guarantees
equality. Article 15 prohibits discrimination on the ground of religion. Yet we have a situation
where the minorities have vested interest to remain separate and away from the national main
stream. Right to conserve one’s language is a constitutional right. Minorities may be religious or
linguistic. The power of the state to determine the medium of education cannot take away the right
of the minorities to give education through their language. However if the state makes the mother
tongue the medium of instruction at the primary level and at the higher stages implements the three
language formula by making the state language compulsory, it would not tantamount to violations
of Article 29 or 30. The right conferred by Article 30 is not an absolute right. The state may step
in to maintain the standard of education. The power of the Government to take over management
of an institution which has failed to carry out the directions of the Government was declared void
on the ground that it robbed the minority of its right. The minority has no fundamental right of
affiliation to a University. However cases have come before the courts wherein the teachers and
other staff have been subjected to exploitations in institutions run by minority. Dr. Ambedkar had
stated in the constituent assembly when the provisions about minority’s right was being discussed.
        “It is wrong for the majority to deny the existence of minorities. It is equally wrong for the
minorities to perpetuate themselves. A solution must be found which will serve a double purpose.
It must recognise the existence of the minorities to start with. It will also be such that it will enable
majorities and minorities to merge some day into one”.
       Pandit Nehru also remarked as follows, “ It makes it a permanently isolated group and it
prevents it from any kind of tendency to bring it closer to the other groups in the country. I do not
think it will be a right thing to go the way this country has gone in the past by creating barriers and
by calling for protection.
       The Committee headed by Justice Venkatchalaiah to review the Constitution has suggested
some changes in this regard. However it is doubtful as to whether suggestions made by the
Committee would find the light of the day.
       The property right which was included earlier as a fundamental right has been taken away
by virtue of the 44th amendment and now it is listed as only an ordinary right. Article 32 and
Article 226 of the constitution provide for remedial provisions and gives a right to the aggrieved
citizens of the country and also in some cases to all persons in respect infringement of certain
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fundamental rights to move the Supreme Court and High Courts of the state as the case may be, by
way of writs to enforce the fundamental rights guaranteed under the constitution.
       In principle the human rights are incorporated in Indian Constitution; even before Human
Rights Act was passed in 1993. Now by virtue of the provisions of the Act, Human Rights
Commissions are constituted both by the states as well as by the Centre. This is a quasi-judicial
body and can take note of violations of human rights any where. It can also award compensation to
the victims of human rights violations. There are also separate bodies like National Commission
for Women(constituted under the National Commission for Women’s - Act 1990), National
Commission for Minorities(constituted under National Commission for Minorities Act, 1992),
National Commission for Backward Classes (constituted under National Commission for Backward
Classes Act, 1993, National Commission for Scheduled Castes and Tribes’. These bodies are also
empowered to check as to any atrocities are committed or any human rights are violated on these
communities.
       India has ratified both the International Covenants in regard to human rights on 27.3.1979,
viz.
        (1)International Covenant on Civil and Political Rights of 1966 and
       (2) International Covenant on Economic, Social and Cultural Rights of 1966.

				
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