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 foreign 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 profession, 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; and
6) Right to constitutional remedies for enforcement of Fundamental
Rights.
7) Right to information act,2005
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 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.
Right to property was originally a fundamental right, but is now a
legal right.
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Contents
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Genesis
See also: Indian
independence movement
The development
of constitutionally guaranteed fundamental human rights in India was inspired
by historical examples such as England's Bill of
Rights (1689), the United States
Bill of Rights (approved on 17 September 1787, final
ratification on 15 December 1791) and France's Declaration of the Rights of Man (created
during the revolution of 1789,
and ratified on 26 August 1789).[2] Under the educational system
of British Raj, students were exposed to ideas of
democracy, human rights and European political history. The Indian student
community in England was further inspired by the workings of parliamentary
democracy and Britishers political parties.
In 1919, the Rowlatt Act gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less 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 the 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 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 largest Indian political party of the time)
adopted resolutions committing itself to the defense of fundamental civil
rights, as well as socio-economic rights such as the minimum wage and the abolition ofuntouchability and serfdom.[3] Committing themselves to socialism in 1936, the Congress leaders
took examples from the constitution
of the erstwhile USSR, 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, composing of elected representatives under the
presidency of Rajendra Prasad.
While members of Congress composed of a large majority, Congress leaders
appointed persons from diverse political backgrounds to responsibilities of
developing the constitution and national laws.[4] Notably, Bhimrao Ramji
Ambedkar became the chairperson of the drafting committee,
while Jawaharlal Nehru and Sardar Vallabhbhai
Patel 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 adopted the Universal
Declaration of Human Rights 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.
[edit]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, like freedom of speech and religion
were not recognized and protected by the State.[5] 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.[6]
All
people, irrespective of race, religion, caste or sex, have been given the right
to move the Supreme Court and
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".[7] In some cases, High Court
judges have acted 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 emphasize 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 and expression and
freedom to reside and settle in any part of the country are reserved to
citizens alone, including non-resident Indian
citizens.[8] The right to equality in
matters of public employment cannot be conferred to overseas citizens of
India.[9]
Fundamental
rights primarily protect individuals from any arbitrary state actions, but some
rights are enforceable against individuals.[10] For instance, the Constitution
abolishes untouchability and
also prohibits begar. 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[11] that all provisions of the
Constitution, including fundamental rights can be amended. However, the Parliament cannot
alter the basic structure of the constitution. Features such as secularism and democracy fall under this category. Since
the fundamental rights can only be altered by a constitutional
amendment, their inclusion is a check not only on the executive branch,
but also on the Parliament and
state legislatures.[12]
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 which go against the rights given in Article 19.
Also, the President may
by order suspend the right to move court for the enforcement of other rights as
well.
[edit]Right to equality
Right to
equality is an important right provided for in Articles 14, 15, 16, 17 and 18
of the constitution. It is the principal foundation of all other rights and
liberties, and guarantees the following:
§ Equality before law: Article 14 of the constitution guarantees
that all citizens shall be equally protected by the laws of the country. It
means that the State[5] cannot discriminate any of the
Indian citizens on the basis of their caste, creed, colour, sex,gender,
religion or place of birth.[13]
§ Social equality and equal access to public areas: Article 15
of the constitution states that no person shall be discriminated on the basis
of caste, colour, language etc. Every person shall have equal access to public
places like public parks, museums, wells, bathing ghats and temples etc.
However, the State may make any special provision for women and children.
Special provisions may be made for the advancements of any socially or
educationally backward class or scheduled castes or scheduled tribes.[14]
§ Equality in matters of public employment: Article 16 of the
constitution lays down that the State cannot discriminate against anyone in the
matters of employment. All citizens can apply for government jobs. There are
some exceptions. The Parliament may enact a law stating that certain jobs can
only be filled by applicants who are domiciled in the area. This may be meant
for posts that require knowledge of the locality and language of the area. The
State may also reserve posts for members of backward classes, scheduled castes
or scheduled tribes which are not adequately represented in the services under
the State to bring up the weaker sections of the society. Also, there a law may
be passed which requires that the holder of an office of any religious
institution shall also be a person professing that particular religion.[15] According to the Citizenship
(Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of
India.[9]
§ Abolition of untouchability: Article 17 of the constitution
abolishes the practice of untouchability. Practice of untouchability is
an offense and anyone doing so is punishable by law.[16] TheUntouchability Offences
Act of 1955 (renamed to Protection of Civil Rights Act in
1976) provided penalties for preventing a person from entering a place of
worship or from taking water from a tank or well.
§ Abolition of Titles: Article 18 of the constitution
prohibits the State from conferring any titles. Citizens of India cannot accept
titles from a foreign State.[17] The British government had
created an aristocratic class known as Rai Bahadurs and Khan
Bahadurs in India — these titles were also abolished. However, Military and academic distinctions can be conferred on
the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the
recipient as a title and do not, accordingly, come within the constitutional
prohibition".[18] The Supreme Court, on 15
December 1995, upheld the validity of such awards.
[edit]Right to freedom
The
Constitution of India contains the right to freedom, given in articles 19, 20,
21 and 22, with the view of guaranteeing individual rights that were considered
vital by the framers of the constitution. The right to freedom in Article 19
guarantees the following six freedoms:[19]
§ Freedom of speech and expression,
which enable an individual to participate in public activities. The phrase,
"freedom of press"
has not been used in Article 19, but freedom of expression includes freedom of
press. Reasonable restrictions can be imposed in the interest of public order,
security of State, decency or morality.
§ Freedom to assemble peacefully without arms, on which the
State can impose reasonable restrictions in the interest of public order and
the sovereignty and integrity of India.
§ Freedom to form associations or unions on which the State
can impose reasonable restrictions on this freedom in the interest of public
order, morality and the sovereignty and integrity of India.
§ Freedom to move freely throughout the territory of India
though reasonable restrictions can be imposed on this right in the interest of
the general public, for example, restrictions may be imposed on movement and
travelling, so as to control epidemics.
§ Freedom to reside and settle in any part of the territory of
India which is also subject to reasonable restrictions by the State in the
interest of the general public or for the protection of the scheduled tribes because certain
safeguards as are envisaged here seem to be justified to protect indigenous and
tribal peoples from exploitation and coercion.[20] Article 370 restricts citizens from other
Indian states and Kashmiri women who marry men from other states from
purchasing land or property in Jammu & Kashmir.[21]
§ Freedom to practice any profession or to carry on any
occupation, trade or business on which the State may impose reasonable
restrictions in the interest of the general public. Thus, there is no right to
carry on a business which is dangerous or immoral. Also, professional or
technical qualifications may be prescribed for practicing any profession or
carrying on any trade.
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 conviction for offences is
guaranteed in 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 that time. 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" (injury, beating or unlawful imprisonment to
make a person do something that he does 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, 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.[22]
§ Protection of life and personal liberty is also stated under
right to life and personal liberty. Article 21 declares that no citizen can be
denied his life and liberty except by law.[23] This means that a person's
life and personal liberty can only be disputed if that person has committed a
crime. However, the right to life does
not include the right to die, and
hence, suicide or an attempt thereof, is 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.[24] In 1996 however another
Supreme Court ruling nullified the earlier one.[25]) "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.[26]
§ In 2002, through the 86th Amendment Act, Article 21(A) 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.[27] Six years after an amendment
was made in the Indian Constitution, the union cabinet cleared the Right to
Education Bill in 2008. It is now soon to be tabled in Parliament for approval
before it makes a fundamental right of every child to get free and compulsory
education.[28]
§ 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 by a lawyer of his choice.
Also an arrested citizen has to be brought before the nearest magistrate 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 detained under the Preventive
Detention Act. Under preventive detention,
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 from doing this possible harm. After three
months such a case is brought before an advisory board for review.[29]
The
constitution also imposes restrictions on these rights. The government
restricts these freedoms in the interest of the independence, sovereignty and
integrity of India. In the interest of morality and public order, the
government can also impose restrictions. However, the right to life and
personal liberty cannot be suspended. The six freedoms are also automatically
suspended or have restrictions imposed on them during a state of emergency.
[edit]Right against
exploitation
The right
against exploitation, given in Articles 23 and 24, provides for two provisions,
namely the abolition of trafficking in human beings and Begar (forced labor),[30]and abolition of employment of
children below the age of 14 years in dangerous jobs like factories and
mines. Child labour is
considered a gross violation of the spirit and provisions of the constitution.[31] Begar, practised in the past by landlords,
has been declared a crime and is punishable by law. Trafficking in humans for
the purpose of slave trade or prostitution is also prohibited by law.
An exception is made in employment without payment for compulsory services for
public purposes. Compulsory military conscription is covered by this
provision.[30]
[edit]Right to freedom of
religion
Right to
freedom of religion, covered in Articles 25, 26, 27 and 28,
provides religious freedom to
all citizens of India. The objective of this right is to sustain the principle
of secularism in India. According to the
Constitution, all religions are equal before the State and no religion shall be
given preference over the other. Citizens are free to preach, practice and
propagate any religion of their choice.
Religious
communities can set up charitable institutions of their own. However,
activities in such institutions which are not religious are performed according
to the laws laid down by the government. Establishing a charitable institution
can also be restricted in the interest of public order, morality and health.[32] No person shall be compelled
to pay taxes for the promotion of a particular religion.[33] A State run institution cannot
impart education that is pro-religion.[34] Also, nothing in this article
shall affect the operation of any existing law or prevent the State from making
any further law regulating or restricting any economic, financial, political or
other secular activity which may be associated with religious practice, or
providing for social welfare and reform.[35]
[edit]Cultural and educational
rights
As India
is a country of many languages, religions, and cultures, the Constitution provides special
measures, in Articles 29 and 30, to protect the rights of the minorities. Any
community which has a language and a script of its own has the right to
conserve and develop it. No citizen can be discriminated against for admission
in State or State aided institutions.[36]
All
minorities, religious or linguistic, can set up their own educational
institutions to preserve and develop their own culture. In granting aid to
institutions, the State cannot discriminate against any institution on the
basis of the fact that it is administered by a minority institution.[37] But the right to administer
does not mean that the State can not interfere in case of maladministration. In
a precedent-setting judgment in 1980, the Supreme Court held that the State can
certainly take regulatory measures to promote the efficiency and excellence of
educational standards. It can also issue guidelines for ensuring the security
of the services of the teachers or other employees of the institution. In
another landmark judgement delivered on 31 October 2002, the Supreme Court
ruled that in case of aided minority institutions offering professional
courses, admission could only be through a common entrance test conducted by
State or a university. Even an unaided minority institution ought not to ignore
the merit of the students for admission.
[edit]Right to Life
In recent
judgement Supreme Court of India extended scope of right to life.
[edit]Right to constitutional
remedies
Right to
constitutional remedies empowers the citizens to move a court of
law in case of any denial of the fundamental rights. For instance, in case of
imprisonment, the citizen can ask the court to see if it is according to the
provisions of the law of the country. If the court finds that it is not, the
person will have to be freed. This procedure of asking the courts to preserve
or safeguard the citizens' fundamental rights can be done in various ways. The courts
can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state
emergency is declared, this right is suspended by the central government.[38]
[edit]Critical analysis
The
fundamental rights have been revised for many reasons. Political groups have
demanded that the right to work, 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,[39] though these provisions have
been enshrined in the Directive Principles of state policy.[40] The right to freedom and
personal liberty has a number of limiting clauses, and thus have been
criticized for failing to check the sanctioning of powers often deemed
"excessive".[39] There is also the provision of
preventive detention and suspension of fundamental rights in times of Emergency.
The provisions of acts like the Maintenance
of Internal Security Act (MISA) and the National Security Act(NSA) are a means of
countering the 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.[39] The phrases "security of
State", "public order" and "morality" are of wide
implication. People of alternate sexuality is criminalized in India with prison
term up to 10 years. 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.[39] The freedom to assemble
peacably and without arms is exercised, but in some cases, these meetings are
broken up by the police through the use of non-fatal methods.[41][42]
"Freedom of press" has not been included
in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more
legitimate.[39] 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.[43] 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.[44] The right to equality in
matters regarding public employment shall not be conferred to Overseas citizens of
India, according to the Citizenship (Amendment) Bill'', 2003.[9]
[edit]Amendments
Changes to
the fundamental rights require a constitutional
amendment 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 should not be less than the simple majority of the house — whether
the Lok Sabha or Rajya Sabha.
The right
to education at elementary level has been made one of the fundamental rights
under the Eighty-Sixth Amendment of 2002.[27]
[edit]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 Forty-Forth Amendment of 1978 deleted the
right to property from the list of fundamental rights[45] 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 still a constitutional
right. If the government appears to have acted unfairly, the action can be
challenged in a court of law by citizens.[39]
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.[46] The Supreme Court has sent a
notice to the government questioning why the right should not be brought back
but in 2010 the court rejected the PIL [47]
As in 2007
the supreme court unanimously said that the fundamental rights are a basic
structure of the constitution and cannot be removed or diluted.
[edit]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.[48] 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 operationalisation 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 institutions 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 Finance Commission has given Rs. 25,000 crore to the States for
implementing the Act. The Centre has approved an outlay of Rs.15,000 crore for
2010-2011.
The school
management committee or the local authority will 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.
അഭിപ്രായങ്ങളൊന്നുമില്ല:
ഒരു അഭിപ്രായം പോസ്റ്റ് ചെയ്യൂ