Fundamental Rights and related issues

Date: December 29, 2014

fundamental rights child rights women rights

Fundamental Rights

  Background – Since days of independence the demand for basic rights was a major component of freedom fighters. The home rule movement of Ani Basent demanded that type of monarchy in which peoples have freedom of speech and expression, right of privacy, right to property, equality befor law and personal freedom is provided to all individuals without any discrimination. Indian national Congress in its Mumbai sessioin demanded that the British Indian citizen should also get freedom of speech, equality before law and freedom of press. Indian national congress in its Madras session (1927) demended fundamental rights, especially rights related with protection of interests of minority community. The Nehru report of 1928 also included fundamental rights in it recommendation however the Indian constitution commission denied including fundamental rights in it reports. The Indian national congress in its Karachi session (1931) demanded written guarantee from Britsh Govt. for basic rights. Artcle 295 of the Govt. of India Act 1935 provided some protection to very few rights for British Indian citizens.

Constitutional position-

Article 12 to 35 of part III is related with fundamental rights, Articale 12, 13, 33, 34 and 35 are General Art which is related only with some aspects of fundamental rights Art. 33 and 34 provides power of parliament to modify the rights for armed forces and restriction of rights where martial law in force.

Artcle 12 provides definition of the states under it the state inclues the Govt. and parliament of India and the Govt. and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Govt. of India. Here judiciary is not included in the definition of state.

Article 13 clearly explains that all laws inforce in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this part, shall to the extent of such inconsistency be void.

Right to equality

Equality befor law (Art-14) - The State shall not deny to any person equlity before the law or the equal protection of the laws withing the territory of India.

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth Art-15 – (1) The State shall not discriminate against any citizen on grounds only of religion, race, cate, sex, place of birth or any the them.

An analysis of Art- 15 clearly shows that Art-15 is an implimented part of Art-14 because it includes only citizens and not the persons. Sexual exploitation of working women is a violation of Art-15 too.

Equality of opportunity in matters of public employment Art-16 (1) – There shall be equlity of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Abolition of Untouchability Art-17– (1) “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.

Abolition of Title Art-18 – (1) No title, not being a military or academic distinction, shall be conferred by the State. Any Indian citizen cannot take titles from any foreign state without permission from president. The Supreme Court decision in Balaji Raghavan vs. Union of India case 1996 made it clear that Bharat Ratna, Padam Bhushan, Padam Vibhushan, Padam Shree etc, cannot be considered as violation of Art 18.

Right to Freedom – According to Art 19 (1) all citizens shall have the right –

  • To freedom of speech and expression;
  • To assemble peaceably and without arms;
  • To form associations or unions [or co-operative societies];
  • To move freely throughout the territory of India;
  • To reside and settle in any part of the territory of India; [and]
  • 3[***] – This Art was removed by 44th constitutional amendment Act. 1978
  • Tp practice any profession, or to carry on any occupation, trade or business.

Art.19 (1) (A) clearly explains freedom of speach and expression in any democratic Govt. it is important that people have right to talk and express either orally or written or by publishing (The freedom of press was decided by supreme court in Indian express newspaper Vs. Union of India case 1985) under this right the freedom of understanding, freedom to cast vote and right to know about the candidate is also included.

Freedom of Organization – Art 19 (1) (B) put some restriction on freedom to assembly like it should be peaceful and under reasanable restrictions and the assembly can be prohibited if it is illegal.

Freedom to form co-operative Union or Soceityunder this right people have freedom to establish companies, socities, corporations, trade unions and political parties. Here it is important to note that freedom to form association is a fundamental right but it is not a fundamental right to get its registration or sanction.

Freedom of free movement – Art 19 (1) (D) provides freedom of movement to all citizens however Art 19 (5) provides reasonable restrictions on it.  The basic objective to provide this is to prove that India is one unit for every citizen.

Freedom to reside –under Art.19 (1) (e) and 19 (5), every citizen have right to reside anywhere in country.

Practice any profession or carry any occupation, Trade or Business – under Art. 19 (1) (g) and Art 19 (6) every citizen have right to do any business, profession, trade or occupation. Here it is important to note that doing business does not include closer of business especily business cannot be shut down in the interest of general public

Protection in respect of conviction for offences Art 20 (1) – No person shall be convicted of any offence except for violation of a 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 saem offence more than once.

(3) – No person accused of any offence shall be compelled to be a withness against him.

Inportant point regarding this that legislature have no power to make criminal laws with retrospective effect.

Prottection of life and personal liberty (21) – No person shall be deprived of his life or personal liberty except according to procedure established by law.

Here the term person is not only limited to the citizens however it is also provided to other nationals and also to those people who are convicted and in jail. Any person who is arrested cannot be debarred from this right only because he is convicted and is in jail. Various court and especially supreme court made right ot life much more exhaustive it included various ritghts like right to speedy trial and protection from in human working conditions and bounded level, right to pure drinking water, right to pollution free enviorment ect. It also provided right to education under fundamental right, right to privacy right against costodial death and rights regarding electricity, water, pure air, and hygienic food etc, even right to uninterrupted sleep is also included as a fundamental right under Art 21.  

Article 21 –A Right to Education

The state shall provide free and compulsory education to all children of the age of ix to fourteen years in such manner as the state may be law determine

  • The Constitution (86th Amendment) Act 2002, seeks to make free and coumputsory education a Fundamatol Right for all children in the age group 6-14 years by inserting a new Article 21A in Part 3 of the Constitution.
  • The new Article 21A reads as follows: The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may by law determine.
  • It is intended to benefit India’s 190 million 6-14 years lolds especially some 35 million currently not attending school.
  • The Govt. is trying to taget suchg children though a Sarva Shikha Abhiyan and a series of measures and facilities – such as free medday meals uniforms and textbooks.
  • Steps are being taken to provide mobile schools to help certain students who are not staying long enough at one address – construction workers’ children, for instance or giving examination on demand to kids unable to mett regular schedules.
  • Also, as per the act, “the state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
  • Further, the Act makes ti the fundamental duty of parents and guardians to provide opportunities for education to their children/wards in the 6-14 age gourp

Analysis

  • In the original Consititution Right to education was in form of a directive principle to be implemented within 10 years.
  • The Supreme Court in the Unnikrishnan vs. State of Andhra Pradesh (1993) ruled that the right to education is a fundamental right that flows from the right to life in Article 21 of the constitution.
  • In 2002 education as a fundamental right was passed in the form of 86th
  • But the Centre passed on the model Bill to the states claiming it did not have sufficient funds to implement the bill. An estimated Rs. 53,000 crore will be needed every year to implement the law.
  • But the 1976 constitutional amendment made education a concurrent subject, meaning it was the responsibility of both the Central and state governments.
  • By providing only a model bill the centre is not obliged to provide any financial assistance to state governments for implementing the fundamentsl right.
  • Leaving the enactment and implementation of the bill to the states mean that several aspects of the bill may not be implemented at all.
  • It the central Govt. tables and enacts a new bill it will pave the way for a central legislative frome work through which constitutional guarantee for right to education is provided.
  • It a civil servant is dismissed on criminal charges his dismissal does not come under double jeopardy and he could be well prosecuted further in the court.

Protection against arrest and detention in certain cases (Art.22 (1)) -  No person whi is arrected 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 arrecte and detained in custody shall be produced before the nearest magistratedwithin a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody behond 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 or

(b) To any person who is arrested or detaned under any law providing for preventive detention.

Right against Exploitation

Proghibition of traffic in human beings and forced labour (Art.23) – Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

Art. 23rd is not only againsed the state but it is also against individuals. Illegal trade and beggar of human being is constutionally believed at as a form of expoitation.

Art 24 – prohibits employment of children below 14 years into any hazardous employment

Right to freedom of religion

The 42nd constitutional amendment in 1976 added ‘sociolist’ and ‘secular’ in the Preamble of India of constitution. In S R Bommai vs. Union of India case 1994 Supreme Court decided that secularism is the basic feature of our constitution and accordingly all religions in India are given equal importance and every one have freedom to adopt and propogate any religion.

Art 25 ensures that subject to public order, moralty 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, practice and propagate religion.

Art. 26 provides that subject to public order morality and health every religious denomination or any section thereof shall have the right –

  • To establish and maintain institutions for religious and charitable purposes.
  • To manage its own affairs in matters of religion;
  • To own and acquired movable and immovable property; and
  • To administer such property in accordance with law.

Art 27 provides that no one shall  be compaled to pay any tax for promotion of any particular religion this Art ensures that no public money can compalsarly be collected for promotion or maintance of any religion.

Art 28 Goves freedom as to attendance at religious instruction or religious worship in certain educational institutions? Art 28 (1) says that no religious instructions shall be provided in any educational institute wholly maintained by state funds. While an educational institutes which is administered by or recognized by the state can give religious instructions but it is subject to consent of their guardian. In Aruna Roy Vs. Union of India case 2002 the Supreme Court decided that moral education given on the basis of teachings of various religions is not a violation of Art 28.

Art 29 Protection of interests of minorities any section of the citizens residing in the territory of India or any part thereof having a distinct language, scrip or culture of its own shall have the right to conserve the same.

Art 30 Right of minorities to establish and administer educational institutions all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Fundamental Rights: Important Features

  1. Fundamental rights provided in part III of the constitution are very comprehensive and detailed in comparision to all other democratic countries of the world. Euity, freedom, religious freedom and expoitation free society are major features of it.
  2. The fundamental rights provided in part III are not only meaningful but also are in practice they are so elaborate that each right clearifies that what is in it, for ex. Equality means equality before law, equality of opportunity, equality of status and abolition of titles. Likewise right of freedom includes freedom of speech and expression, formation of union, co-oprative socities and association and right to protest etc. In general it means that our fundamental rights are special, specific and objectively meaningful.
  3. Fundamental rights in part III are very practical and in line with objectvily prevailing situvation in socity. Fundamental rights on the one hand provide favourable conditions for development of human personality and on the other hand ensure that state is prohibited to overight these powers.
  4. Fundamental rights are provided to ensure restriction on state/Govt. excutive and legislature so that they cannot violate rights provided in part II.
  5. Fundamental rights defferenciate between citizen and non citizens for eg. Term individual is used in Art 14 (3), Art 18, 20, 21, 22, 25, 27 (4) and the term citizen is used in Art. 15, 16, 18, (2), 19, 29 (1) (2).
  6. under Art. 21 A right to education is included as fundamental right
  7. Art 20 and 21 of part III are important and even provided during national emergency

Fundamental Rights and Directive Principle of State Policy

Our discussion on fundamental rights and directive principles of part III and part IV cannot be completed untill we discuss both with reference to-

  1. Differences among both 2. Relationship between both and
  2. Views of Supreme Court and Parliament regarding both

Fundamental rights and directive principles are different from each other as for as nature is concerned fundamental rights are political while directive principle are of socio economic nature. In all fundamental right are negative while directive principles are instructive. Fundamental right are provided for the citizens that is they are assets for the citizens while directive principle are assets of the state they are related with state and are those functions which are expected to be performed by the state. Directive principles are the duties of state not their right. Fundamental rights can be explained as dicrees over state while directive principles are only guidelines for the functioning the state. Fundamental right can also be implemented by Courts that is they are justiciable while directive principles are not justiciable as they cannot be inforced by any Court of law. fundamental rights are aimed to establish political democracy in the country while directive principles are aimed to establish social and economic democracy in the country. However the fact is that the both are two facets of same coin. The constitution makers assumed at both are parts of comprehensive rights and can be classified into two groups that are individual political right and individual social economic rights. Fundamental rights are presents rights while directive principles are futuristic rights. In short both are incomplete without each other. The Courts in their dicisions decided that both are important for equitable and welfare state. According to Austin both are complimentary to each other and faith of our constitution.

Issued Related with Women Rights

The total population of India as per 2011 sensus is 121, 01, 93, 422 out of it there are 58, 54, 69, 174 (48.46%) are female. Due to male dominated socity, the condition of women in India is very poor they face too much hardship in their life and hindrances in growth at every stage of life. Personal laws are discriminatory and painful for them. In India while male have 82.14% literacy rate while famales have 65.46% which is approximately 15% less. Rural women have more poor conditions of life and rural Dalit women are even in more pittyful condtion. Our constitution provides gender equality but it is not provided on practical grounds.

Our constitution not only provides equality to women but also ensures to provide special and realistic provisions for their upliftment. Art. 14, 15, 16 provides protection of women regarding fundamental rights. While Art 39, 42, 46 and 47 of directive principles ensures facilitates for women emprowerment. Part IV A provides fundamental duties in which Art 51 A (e) provides that it is the duty every citizen to renounce pactices derogatory to the dignity of women. The 73rd and 74th constitutional amendment provides 1/3 reservation to women in rural and urban local bodies various laws are made against social discrimination and crime against women. The Indian penal Court provides provision of punishment in case of rape (section 63), kidnapping for various purposes (section 363-373), dowry crime and physical exploitation and death due to dowry (section 398 A) molestation (section 54), sexual exploitation (section 509), illegal trade of girls etc. are considered as serious crimes.

Various dicision taken by Govt. of India for empowerment of women can be listed as below

  1. In January 1992 national commission for women was establish as statuary body for legal and constitutional protection and evaluation of these majors of women powerment it also suggest Govt. regarding these matters.
  2. Reservation of women in the institutions of rural local Govt. – The 73th and 74th constitutional amendment act (1993) provides reservation of women
  3. National work plan for girl child (1991-2000) under this action plan protection of femal child was major focus area along with there proper development
  4. National policy for woman empowerment (2001) to make legal procedure more sensitive for woman and for there proper comprehensive and all round development Govt. of India launched a national policy for women empowerment it is also in line with international standared and work practices regarding woman empowerment
  5. Protection from dmestice vailance act 2005 under this act the righ of those women are protected who suffer from domestic violence from their family
  6. Woman and child development ministry 2006 it was establish in January 2006 and it function at a nodal ministry for woman development and child development

Issues related with children and their rights

  • Every 5th child in the world is Indian.
  • Every 3rd malnourished child of the world is Indian.
  • Every 2nd Indian child has less weight.
  • Every 4th Indian child have anemia.
  • Due to iodine deficiency evey 2nd child have memory related problem.
  • The sex ration among 0-6 years is declined.
  • Only 62% have got birth registration at primary level the registration rate is 71.01% rate.
  • The primary level registration among girls is 47.79%
  • In India there is approximately 1104 lakh child labour.
  • Low weight children by birth at 46%.
  • 79% children belolw 3 years of age have anemeia.
  • Immunization coverage is very low.

(Above facts may be vary, kindly update as per current)

For protection development and welfare along with education and health of children Indian constitution and acts passed by parliament have significant contribution. Art 14, 15, 19, 21, 21 A, 23, 24 and 29 provide rights to persons along with children. We also followed international conventions and policy fram work regarding children India announced- 1. National child policy, 2. National child labor policy 1984, 3. National Nutrition policy 1993, 4. National charter for children 2004, 5. National work plan for children 2005.

Issues related with minorities

According to 2011 census the minority population in India is Muslim (13.4%), Christian (2.3%), Sikh (1.9%), Bodh (0.01%), and Jain (0.04%). Here is important to note the Hindu population is 80.5%. the constitution of India ensures cultrural and religious rights for minorities with reference to its development and protection they are helped with financial assistance and also have right to protect their culture and script. India is multilingual, multicultural and multiathenic society Muslish, Christian, Sikh, Bodh, Parsi and Jain are recogniged and minority community in India.

 


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