R E SE SE A R CH C H P R O J E CT C T O F PO L I T I C A L SCI ENCE
O N TH E TOP TO PI C
“FUNDAMENTAL RIGHTS “FUNDAMENTAL RIGHTS”” -- K U M A R PRESENTED BY - --
B.A.LLB,
M A N G AL AL A M
FIRST YEAR
ROLL NO.-936 SUBJECT TEACHER--- S.P.SINGH
INTRODUCTION 'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which ever y 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, place of birth, religion, caste, creed, color or gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The six fundamental rights recognised by the constitution are:
1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2) Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with f oreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4) Right to freedom of religion, including freedom of conscience and free p rofession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
6) Right to constitutional remedies for enforcement of Fundamental Rights. Fundamental rights for Indians have also been aimed at overturning the inequaliti es of pre-independence
social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
RESEARCH M ETH ODOL OGY The researcher has done the project by fully doctrinal method. No field work has been done in the research work. The researcher has relied upon various books of political science, constitution of India, and other online sources present.
H YPOTH ESI S The researcher had hypothesized that reasonable restriction is justified in fundamental rights in some cases.
F U N D A M E N T A L R I GH T S 1.
Right to Equality A. Equality before law and equal protection of law B. Prohibition of discrimination on grounds only of religion, race, caste, sex or place
of birth. C. Equality of opportunity in matters of public employment End of untouchability D. Abolition of titles, Military and academic distinctions are, however, exempted.
2.
Right to Freedom
A.
It guarantees the citizens of India the following six fundamentals freedoms
B. Freedom of Speech and Expression C. Freedom of Assembly D. Freedom of form Associations E. Freedom of Movement
Freedom of Residence and Settlement G. Freedom of Profession, Occupation, Trade and Business H. Protection in respect of conviction for offences I. Protection of life and personal liberty J. Protection against arrest and detention in certain cases F.
3.
Right Against Exploitation
A. Traffic in human beings prohibited B. No child below the age of 14 can be employed
4. Right to freedom of Religion
A. Freedom of conscience and free profession, practice and propagation of reli gion B. Freedom to manage religious affairs C. Prohibits taxes on religious grounds D. Freedom as to attendance at religious ceremonies in certain educational institutions
5.
Cultural and Educational Rights
A. Protection of interests of minorities B. Right of minorities to establish and administer educational institutions C. Omitted by the 44th Amendment Act
6.
Right to Constitutional Remedies
A. The right to move the Supreme Court in case of their violation.
ARTI CL ES CONTAI NI NG F UNDAM ENTAL RI GHT S
1. Right to equality(ARTICLE 14-18) ARTICLE 14:- This article deals with right to equality. The right to equality states that everyone is equal in eyes of law and there should be no partiality in giving the judgement.
ARTICLE 15(1) :- The state should not discriminate on the basis of religion, caste, sex, place of birth or any of them . (2) No citizen should on grounds of sex, religion, place of birth or any of them, be subjected to any disability, liability, or condition . (3) Nothing in this article shall prevent the State from making any special provision for women and children
ARTICLE16. Equality of opportunity in matters of public employment
1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 2. No
citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. 3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territor y, any requirement as to residence within that State or Union territory] prior to such employment or appointment. 4. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. 5. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
ARTICLE 17 Abolition of Untouchability "Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law.
ARTICLE 18 . Abolition of titles No title, not being a military or academic distinction, shall be conferred by the State. No citizen of India shall accept any title from any foreign State.
2. RIGHT TO FREEDOM ARTICLE (19-22) ARTICLE 19. Protection of certain rights regarding freedom of speech etc .All citizens shall have the right-
(a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c). to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) omitted (g) to practice any profession, or to carry on any occupation, trade or business.
ARTICLE 20. Protection in respect of conviction for offences .(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No
person shall be prosecuted and punished for the same offence more than once.
(3) No
person accused of any offence shall be compelled to be a witness against himself .
ARTICLE 21. Protection of life and personal liberty .-
No person shall be deprived of his life or personal liberty except according to procedure established by law.
ARTICLE 22. Protection against arrest and detention in certain cases. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien (b) to any person who is arrested or detained under any law providing for preventive detention (4) No
law providing for preventive detention shall authorise the detention of a person
for a longer period than three months
3. RIGHT AGAINST EXPLOITATION (ARTICLE23-24)
ARTICLE 23:- Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and beggar and other similar for ms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
ARTICLE 24:- Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
4. RIGHT TO FREEDOM OF RELIGION (ARTICLE-25-28) ARTICLE 25 :- Freedom of conscience and free profession, practice and propagation of religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate r eligion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu r eligious institutions of a public character to all classes and sections of Hindus.
ARTICLE 26 :- Freedom to manage religious affairs. Subject to public order, morality and health, every religious denomination or any section t hereof shall have the right(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of r eligion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
ARTICLE 27 :- Freedom as to payment of taxes for promotion of any particular religion. No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religions denomination.
ARTICLE 28 :- Freedom as to attendance at religious instruction or religious worship in certain educational institutions . 1. No religion instruction shall be provided in any educational institution wholly maintained out of State funds . 2. Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. 3. No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent t hereto.
5. CULTURAL AND EDUCATIONAL RIGHTS (29-31) ARTICLE 29 :- Protection of interests of minorities 1.
. Any
section of the citizens residing in the ter ritory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
2. No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
ARTICLE 30 :- Right of minorities to establish and administer educational institutions 1.
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice .
2.
The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
6. RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32-34) ARTICLE-32:- Remedies for enforcement of rights conferred by this Part
1.
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2.
The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
3.
Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. 1
AMENDMENTS
1. Right to property The Constitution originally provided for the right to property 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 FortyForth Amendment of 1978 deleted the right to property from the list of fundamental rights. 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 legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is st ill a constitutional right. If the government appears to have acted unfairl y, the action can be challenged in a court of law by citizens.
2. Right to education Article 21A – On 1 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force. .Making elementary education an entitlement for children in the 6 – 14 age group, the Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present. Prime Minister Manmohan Singh announced the activation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will 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 instit utions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the 1
Taken from constitution of India, 1950; edition 2013 publisher-central law agency, Allahabad, page no-06-20
Finance Commission has given Rs.250 billion to the States for implementing the Act. The Centre has approved an outlay of Rs.150 billion for 2010 – 2011.2
CASE STUD Y
1.
Under Art 14/19/21---A. K .Gopalan vs. State of Madras
A communist leader was detained under Preventive Detention Act,1950. 1. Fundamental Rights are not absolute. 2. Rights in Part III are mutually exclusive and that liberty in Art 19 And 21 are different things. (Overruled in Menaka Gandhi) 3. Held that “law” means state made law and not principles of natural justice. 4. Rejected that “procedure established by law” is same as “due process of law” of the US constitution. 5. Held that 21 protect against loss of personal physical liberty and19 deals with unreasonable restrictions on specific freedoms.
2. Under article 21 Menaka Gandhi vs. Union of India
Passport was confiscated without providing any reason. Prior to this case, Art 21 guaranteed protection against arbitrary action only of executive and not from legislative action. After this case: A person can be deprived of life and personal liberty only if 1. There is a law. 2. The law must provide a procedure. 3. The procedure is just, fair, and reasonable. 4. The procedure must satisfy Art 14. Important Points 1. Fundamental rights represent the values cherished by people since Vedic ages and are calculated to provide dignity to human beings and to create conditions that enable a human being to develop his personality to fullest extent. (J Bhagvati) 2. Provisions of Part III should be given widest possible interpretation. 3. Rights in Part III are not mutually exclusive but form a single scheme. 4. Laws under Art 21 must satisfy the test of reasonability under Art 14 and also stand the test of Art 19.
2
http://www.lawyersclubindia.com/articles/Right-to-Property-under-the-Indian-Constitution-3515.asp, last visited on 08/10/2013 at 20:00 hrs
5. SC has accepted that “law” should be reasonable law and not just an enacted law. To be fair and just, it should follow the principles of natural justice. Thus, even if “due process of law” is not explicitly mentioned, the effect is same.
BIBLIOGRAPHY 1. CLA,S Constitution of India, 1950 bare act, central law agency, Allahabad 2. Political science, Dr.S.R.Myneni, Allahabad law agency, 3rd edition, reprint 2012 3. Lawman’s Constitution of India; Kamal publishers, new Delhi; edition 2013 4. For cases:- http://www.e-lawresources.co.uk/ 5. http://hanumant.com/Case-List.pdf
