Importance Of Fundamental Rights Under India Constitution (By-Anshika Porwal)

Importance Of Fundamental Rights Under India Constitution

Authored By – Anshika Porwal

College- Lloyd Law College, Greater Noida

Profession - Student

Fundamental Rights

The Constitution of India guaranteed fundamental rights under Article 12-35. The liberal philosophy behind the creation of these fundamental rights aims to find a fair balance between individual freedom and social regulation. The Indian Constitution granted certain fundamental rights to citizens while other fundamental rights are equally available to non-citizens. However, laws in derogation with the fundamental rights will be declared as ‘void’.

 Following are the Fundamental Rights-

Right To Equality (14-18)

This fundamental right ensures that everyone receives equal treatment and prohibits any form of discrimination on ground of caste, creed, color, religion, gender etc before the law and it also outlaws the titles and abolish untouchability. It covers two aspect- Equality before law and Equal protection of laws[1]. From a watchman to a prime- minister will undoubtedly abide by the same legislation. The Indian Constitution does, however, make some exceptions to the concept of ‘equality before law’[2].

 Article 14: encapsulate that all citizens irrespective of his/her background shall be treated same in the eyes of law and shall be equally administered within the territory of India.[3]

Article 15: provides that state is prohibited from discriminating any citizen on the basis of religion, race, caste, sex or place of birth in terms of access to hotels, shops, restaurants, public places of

entertainment, use of roads, ghats, tanks and other places which wholly or partially owned by the state or intended for use by the general public.[4]

Article 16: provides that the state shall provide equal employment opportunities to all citizens and shall not discriminate on the grounds of race, religion, caste, sex, birth place in the same matter. However, exceptions can be inserted by the state for providing special privilege to backward society.

Article 17: Prohibits untouchability[5] and forbids its practice in all forms. Moreover, any disability arising out of untouchability is illegal and will be punished accordingly.

Article 18: prohibits the state from bestowing any titles on anyone except those who are academic or military distinction. further, acceptance of any title from any foreign state by a citizen of India is prohibited under this article. Without the consent of the president, a foreigner holding any office of profit or trust under the state shall not accept the titles from any foreign state.[6]

Right To Freedom (19-22)

 Article 19-22 of the Indian constitution provides the Right to Freedom to its citizens, including freedom of speech and expression, Freedom of assembly without arms, freedom of association, freedom of movement throughout the country, Freedom to reside and settle in any part of the territory of India and Freedom to practice any profession in India. These Human rights are guaranteed to the people of India only with certain reasonable restrictions which may be imposed by the state in the interests of social control. However, the application of restrictions must be reasonable, just, fair and equitable and must not be overly onerous.[7]

Article 19(1)(a) – describes the right to freedom of speech and expression that every citizen has the right to possess his/her opinions and ideas, freely without censorship through any means including orally, in writing, images, movies, banners, signs and any other mode of communication.[8] This right also guarantees for receive and impart information regardless of frontiers.

 However, this right is not considered an absolute right, as the state may impose certain reasonable restrictions in the interests of the following reasons-

the sovereignty and integrity of India,
the security of the state, friendly relations with foreign states,
public order, decency or morality, or
concerning to contempt of court,
defamation and
incitement to an offense given under Article 19(2) of the Constitution, provided that the application of restrictions must be reasonable, just, fair and equitable and must not be overly onerous.[9]
  The scope of Freedom of speech and Expression is very wide it does not only limited to the mode of communication as stated above but it is also covered Freedom of press, Freedom of commercial speech, Right to Broadcast, Right to information, Right to Criticize, Right to expression beyond National Boundaries and Right to not to speak or Right to silence is also a part of Right to speech and Expression. [10]

In the well-known landmark case of Romesh Thapar V State of Madras[11], Justice, Patanjali Shastri Observed that “freedom of speech and of the press lay at the foundation of all democratic Organisations for without free political discussions, no public education, so essential for the proper functioning of the processes of popular government is possible.”[12]

Thus it can be concluded from the above case law that Freedom of Press is also considered  an essential part of the freedom of speech and expression that every citizen of India has the right to propagate one’s views through any mode of print media and circulate throughout the country subject to specified restrictions.[13]despite the fact, that it is not specifically mentioned in the Article 19(1)(a) of the constitution but still it is recognized as an essential component of freedom of speech and expression under Article 19(1)(a) of the constitution. In the above case law, Supreme Court held that Freedom of Circulation is equally an important aspect as Freedom of Publication.[14]

In the Landmark Case of Bijoe Emmanuel & Ors vs State Of Kerala & Ors, 1986[15]                                           The three children who were Jehova’s follower were dismissed by the school authority because they refused to sing the national anthem during a school assembly. However, they respectfully stood from their seats during the national anthem, but they refused to sing it along. The Kerala High court held that singing the national anthem is a fundamental duty and the court observed that it was acceptable to expel students on the ground that they didn’t fulfill their fundamental duty and showed disrespect towards it. However, after appealing by the children in the Supreme Court, it was ruled that the children had not violated  The  Prevention of Insults to National Honour Act, 1971[16] Further it was held by the Supreme Court the dismissal of students from the school violated the fundamental right under the Article 19(1)(a)[17].

Article 19(1)(b)- The State guarantees Freedom to assemble peacefully without arms and Freedom of association with others to all the citizens of India. The Right to take public meetings and the right to take out processions is also included in Freedom of Assembly. However, this right is not an absolute right as reasonable restrictions may be imposed by the government that is required in a democratic society in the interests of sovereignty and integrity of India, the interests of public order and the prevention of disorder or crime under clause 3 of Article19.[18]

Article 19(1)(c)- The Indian Constitution accords to all citizens have the right to form associations, unions, and cooperative societies for a legitimate purpose. Everyone has a right to form an association which is defined as a group of persons who band together to accomplish a common objective, which may form an voluntarily association for any purpose including commercial purposes, charity endeavours, the welfare of society and etc. However, the right to form association clearly states it’s meaning that it does not only allow people to continue to be a member of any association also it permits for not to continue to be a member of any association.[19] This fundamental right also gives liberty to form political parties.

Again, in the interests of public order, morality, and nation’s integrity, security, and sovereignty and to maintain cordial ties with foreign nations, the state may impose certain reasonable restrictions like any other fundamental rights under Article 19.[20]

Article 19(1)(e) and Article 19(1)(d) - guarantee to all the citizens freedom of movement and freedom of residence in any part of the territory of India. The Constitution of India entitles every citizen of India to move freely and to reside and settle throughout the territory of India in the said Article, i.e one can move and reside freely from one place to another as per his/her own choice i.e- every Indian citizen is granted the right to locomotion within the borders of each state[21] by the stated Article of the Indian Constitution. This right also includes the freedom to leave the country and return to it. Freedom of movement includes the right to use public transportation roads and highways.[22]Additionally, only Indian nationals are eligible to exercise this prerogative, but foreigners are not. Freedom to move freely and freedom to reside throughout the country are correlative to each other. However, under clause 5 of Article 19 the state has the authority to impose reasonable limits to safeguard the interests of the general public or to protect the interests of any Scheduled Tribe.[23]

Article 19(1)(g) - The Indian Constitution ensures that all citizens have to practice any profession or carry on any business or trade within the territory of India.[24] Under this article every person has the freedom to choose or to engage in any employment, trade or occupation as per his/her volition and free will, at the same time this clause also granted freedom to shut down the business whenever the owner chooses.[25] However, the state does not give the right to carry on any activity which is hazardous, anti-social or any illegal activities like- gambling, smuggling etc. Consequently, The state cannot compel any citizen to operate a business that is against his/her consent. Nobody, under this right, has the authority to carry on business with the government.[26]

However, like every other fundamental right, the state may impose reasonable restrictions upon the preferred right in the interests or for the betterment of the general public under Article 19(6).[27] Also, the state has empowered by law to lay down the professional or technical qualification that it deems necessary for practicing a particular profession or carrying on any profession under sub-clause (1) of Article 19(6).[28]

Protection In Respect Of Convention For Offenses (Article 20)

 The protection of citizens in respect of conviction for offencses is covered in Article 12 of the Indian Constitution. Following are the certain safeguards that have been given to the person accused of crimes-

Ex-post facto law: Article 20(1) - This law is also termed Retrospective criminal legislation, a person must not be convicted or prosecuted for an offense under those laws that were not in effect when the offense was committed by the accused and the said accused must not be penalized with the punishments greater than those existing during the time of committing an act will be charged as an offense.[29]
Double Jeopardy: Article 20(2) – The doctrine of “Double Jeopardy”[30] the mentioned    concept originated in American Jurisprudence of Punishment, which states “no one can be prosecuted twice for the same offense in consecutive trials”.[31] It is incumbent that the accused must prove that he has been previously charged and penalized for the same act in a quasi-judicial or indictment in order to bring forth the applicability of this rule.[32]
However, the applicability of the aforementioned provision requires certain conditions need to be fulfilled.[33]

Protection against Self- Incrimination: Article 20(3) –The Indian Constitution under this particular provision prohibits an accused for providing any evidence against himself. This Principle is based on the legal maxim “nemo teneteur prodre accussare seipsum” which means “NO MAN IS BOUND TO ACCUSE HIMSELF”.[34] This Concept of Self- Incrimination is taken from the Fifth Amendment of the US Constitution.[35]
Furthermore, in the case of MP Sharma v. Satish Chandra[36], the Supreme Court held, by interpreting the term “witness” widened its scope to include oral and documentary evidence as well. Under clause 3 of Article 20, the following are the essential ingredients-

This protection is only available when the person is “accused of an offense”
This protection is against compulsion to be a witness i.e- accused must be compelled to give witness.[37]
This protection is against for above compulsion of the accused which results in giving evidence against himself.[38]

Protection Of Life And Personal Liberty (Article 21)

 Article 21 of the Indian Constitution ensures Right to life with human dignity[39] and personal freedom to all persons. This Article plays a very significant role and a wide topic with numerous implications for Indian citizens. It ensures that everyone has the right to live honorably. It includes all the aspects of life which make a person’s life meaningful and worthwhile.

According to the Indian Constitution Article 21 provides:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.[40]

Article 21 includes two rights-

Right to life
Right to personal liberty.
Judicial Interpretation of ‘Life’ under the said Article is not merely the animal existence or the physical act of breathing fact, it is much wider than that, including right to health, right to privacy, right to pollution- free air, right to a decent standard of living and a canopy of other elements as well.[41] Moreover, this fundamental right is available to citizens and non-citizens as well. The main objective of this article is that right to life or liberty of a person is taken away by the state it should only per the procedure prescribed by law.[42]

Right To Education (Article 21A)[43]

The Right to Education Act was inserted and elevated as a status of one of the fundamental Rights in 2002, and it came into effect after eight years in 2010, The basic aim of this right is to provide ‘free and compulsory’ education to all children between the age of six to fourteen years.[44]. To educate every child is the top most priority for the development of the nation, therefore this fundamental right primarily focuses on education. Consequently, the word ‘Free education’ refers to ‘except a child who has been admitted by his/her parents to a school which is not financed by the appropriate government, shall be required to pay any form of fees, expenses or charges which may prevent him/her to complete their elementary education.’[45]

Protection Against Arrest And Detention (Article 22)

 The Indian Constitution provides under Article 22 that any person who is arrested cannot be held in  custody until he gets promptly notified of the reasons and justifications for such arrest.[46] It is a fact that India's judicial system is predicated on the principle of "innocent until proven guilty," everyone has the right to object to any unlawful arrest. Under article 22, the person will be informed of the basis for his or her custody, have the right to contact counsel, and be given the opportunity to be represented by counsel. Within 24 hours after their arrest, people who have been arrested or found guilty must appear before a magistrate.[47] A person who is an enemy alien or who is being held under any law that provides for preventive detention will not have access to these rights.[48]

Right Against Exploitation (Article 23-24)

The Constitution of India under articles 23 & 24 provides that the state is obliged to protect citizens from any kind of forced labor, slavery, beggar, trafficking, and child slavery by taking punitive action.[49] These kind of evil practices are prohibited under this article and any kind of violation of this provision shall be an offense and punishable under the law. Furthermore, this right also prevents any form of exploitation on the weaker or poor section of society also it abolishes immoral and evil practices.[50]

Article 24 prohibits children below the age of fourteen years shall not be employ in any factory, mine or any hazardous occupation. Parliament has enacted some laws in pursuance of Article 24 like- The Factories Act, 1948, The Mines Act, 1952, The Child Labour (Prohibition and Regulation) Act, 1986 and so on. However, the Act allowed children to be employed in non-hazardous work.

Right To Freedom Of Religion (Article 25-28)

Article 25 As India is a ‘secular’ country with so many customs, rituals, and traditions and every person of this country has their own beliefs as different cultures practiced in India from ancient times so this Article guarantees every citizen to right to practice, propagate or profess their own religion subject to public health, public order and morality.

Article 26 provides that every religious denomination has the right to establish and maintain institutions for a religious and charitable purposes, to manage their own religious affairs, and also it provides right to acquire and manage the movable or immovable property as well in accordance with the law.[51]

Article 27 prohibits the state from using tax proceeds for the promotion or maintenance of any particular religion.[52]

Article 28 ensure that the state cannot compel any citizen to attend or to take part in any religious worship or to receive religious instruction from a institution that has received state recognition or receiving financial aid from the state unless they give their (or guardian’s) consent.[53]

Cultural And Educational Right (Article 29-30)

Article 29 & 30 The Constitution of India under Article 29 ensures safeguards to the language, script, values and culture of the various communities. Since India is a democratic country so it protects and preserve its language, and script culture against any discrimination on the basis of religion, caste, sex, birthplace,s etc

Section 30 grant protection to the interests of all the religious and linguistic minorities by giving them the freedom to develop and preserve their values, language and culture by setting up the institutions of their choice and it prevents discrimination against any educational institution which belongs to or administered by the cultural minority.[54] However, this right is subject to impose some reasonable regulations by the state in order to govern the educational requirements, working conditions of the employee, fee structure and the usage of aid that was provided by the state.[55]

Right To Constitutional Remedies (Article 32)

 This Article provides a remedy to every citizen in case of infringement of their fundamental rights. A person can directly approach to Supreme Court and Supreme Court have the power to issue orders, directions, and writs namely, habeas Corpus, prohibition, quo-warranto, and certiorari. High Courts are also empowered to issue writs for the enforcement of fundamental rights under Article 226 of the Indian Constitution. Furthermore, these writs can be issued against private bodies also by the Supreme Court.[56]

Why Do We Need Fundamental Rights And What If There Are No Fundamental Rights?

Fundamental rights are accorded special importance by all major and minor democracies worldwide. For a vast and diverse nation like- India which desires equality, liberty, freedom, and justice. In order to protect both the interests of its citizen and of the nation, the constitution grants fundamental rights. Fundamental rights create a sense of security among all different communities.[57] Fundamental rights must be protected for society to function. Since this is a hypothetical situation, no one can argue that they should be taken away. The inclusion of fundamental right is crucial for the comprehensive development of one’s personality. The basic idea of a liberal and progressive country is achieved by filling the communication gap between a higher authority and its citizen. Freedom to speech and expression set a link between authorities and citizens. These civil liberties grant status of justice and fair play which forbids discrimination regardless of distinctions that besides all differences (irrespective of race, religion, color, gender etc and ensures that everyone has the right and opportunity to be heard at least once. These rights prevent the nation from autocratic control. These rights meant to stand with the unique identity and voice of an individual.[58]  

In this modern era of 21st century, there are still many countries that failed to provide freedom, equality, and justice to their own citizens, if we give it a shot,  violation of fundamental rights or having zero fundamental rights, how bad it can be. So let’s give it a shot, countries like China and North Korea with limited freedom of speech, no gender equality in Yemen and other gulf nation, and the kingdom of Saudi Arabia where non-Muslims are vulnerable to discrimination based on their faith. Consider the time period of invaders where it is forbidden to express one’s emotion, where wealthy and powerful folks ruled the country, weaker sections are forced into slavery, and human trafficking was widespread. an era of darkness and misery, where people and nation both have collapsed.

This paints a clear picture that how the fundamental rights connect a person’s life to freedom, equality, and liberty and this is why fundamental rights are so highly regarded and significant a citizen’s life.

 The picture of a pre and post-independent India is completely different. Unlawful practices and weird customs of the society from sati, patriarchy or let it be the caste system, etc this made and presents strongest arguments favoring the fundamental rights. This situation was pretty much clear to the constitution makers and that is why these human rights have been incorporated in the preservation of stated practices and are exercised and protected by our country’s legislation. Famous postulates supporting fundamental rights “ubi jus ibi remedium” which means “where there is a right there is a remedy” to counter the breach of any fundamental right and make one’s life worth living.[59] This makes our freedom unique compared to communist and gulf nations.

Conclusion

These liberties helped people to develop the essential bravery to speak up for what is right when no one else will. In order to fight fascism fearlessly and they are not subject to the king’s whim, it enables one to be social justice warrior and advocate for political correctness. Even under the harshest and undesirable circumstances, one can attempt to become a decent human being and lead a life on their own terms. These rights are the result of a protracted fight and a ray of hope for freedom and life.