The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the states to its citizens and the duties and the rights of the citizens to the State. These sections comprise a constitutional bill of rights for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent assembly of India.

The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution from Article 12 to 35, applied irrespective of race, place of birth, religion, caste, creed, or gender. They are enforceable by the courts (Which are justiciable), subject to specific restrictions. These rights ensure several rights as fundamental rights to the all citizens and some rights to non-citizens also (people). These rights can be enjoyed either individually or collectively.

PART III - Fundamental Rights (Art.12 to 35)

During our freedom struggle, the leaders of the freedom movement had realised the importance of rights and demanded that the British rulers should respect rights of the people. The Motilal Nehru committee had demanded a bill of rights as far back as in 1928. It was therefore, natural that when India became independent and the Constitution was being prepared, there were no two opinions on the inclusion and protection of rights in the Constitution. The Constitution listed the rights that would be specially protected and called them 'fundamental rights.

The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection. The Fundamental Rights are so important that the Constitution itself ensures that they are not violated by the government. Fundamental Rights are different from other rights available to us. While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution of the country.

Ordinary rights may be changed by the legislature by ordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself. Besides this, no organ of the government can act in a manner that violates them. As we shall study below in this chapter, judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government. Executive as well as legislative actions can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner.

However, fundamental rights are not absolute or unlimited rights. Government can put reasonable restrictions on the exercise of our fundamental rights. Part III of the Indian constitution consist Article 12 to 35 but all these are not providing fundamental rights some Articles are introductory (Article12 and 13) and some are miscellaneous (Article 33 to 35).

Article 12: Definition of State: "the State'' includes the Government and Parliament of India and the Government 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 Government of India.

Article 13: Definition of Law:

1. "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.
2. "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Fundamental rights provided under Indian constitution can be classified in to 6 categories they are:

1. Right to Equality (Art. 14 to 18)
2. Right to Freedom (Art. 19 to 22)
3. Right against Exploitation (Art. 23 and 24)
4. Right to Freedom of Religion (Art. 25 to 28)
5. Right to Cultural and Educational Rights (Art. 29 to 30)
6. Right to Constitutional Remedies (Art. 32)

 

1. Right to Equality:
   1. Equality before law – equal protection of laws (Art. 14)
   2. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth – equal access to shops, hotels, wells, tanks, bathing ghats, roads etc. (Art.15)
   3. Equality of opportunity in public employment (Art.16)
   4. Abolition of Untouchability (Art.17)
   5. Abolition of title (Art.18)
    
2. Right to Freedom:
   1. Protection of Right to – freedom of speech and expression; – assemble peacefully; – form associations/unions; – move freely throughout the territory of India; – reside and settle in any part of India; – practice any profession, or to carry on any occupation, trade or business. (Art.19)
   2. Protection in respect of conviction for offences [ no one twice for same offence] (Art.20)
   3. Right to life and personal liberty (Art.21)
   4. Right to education (Art.21A) *added by 86th amendment in the year 2002
   5. Protection against arrest and detention in certain case (Art.22)
       
3. Right Against Exploitation:
   1. Prohibition of traffic in human beings and forced labor (Art.23)
   2. Prohibition of employment of children in hazardous jobs (Art.24)
       
4. Right to Freedom of Religion:
   1. Freedom of conscience and free profession, practice and propagation of religion (Art.25)
   2. Freedom to manage religious affairs (Art.26)
   3.  Freedom to pay taxes for promotion of any particular religion (Art.27)
   4.  Freedom to attend religious instruction or worship in certain educational institutions (Art.28)
   
    
   5. Cultural and Educational Rights:
      1. Protection of language, culture of minorities (Art.29)
      2. Right of minorities to establish educational institutions (Art.30)
      1. Property Right: Article 31: [Compulsory acquisition of property.] Rep. by the Constitution (Forty-fourth Amendment) Act, 1978
      2. Right to Constitutional Remedies (Heart of the Constitution): Right to move the courts to issue directions/orders/writs for enforcement of rights

Article 32: Remedies for enforcement of rights conferred by this Part

Right to constitutional remedies is the means through which this is to be achieved. Dr. Ambedkar considered the right to constitutional remedies as 'heart and soul of the constitution'. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation. The Supreme Court and the High Courts (Art.226) can issue orders and give directives to the government for the enforcement of rights.

The courts can issue various special orders known as writs.

• Habeas Corpus: A writ of habeas corpus means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.
   
• Mandamus: This writ is issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual.
   
• Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.
   
• Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.
   
• Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court. Apart from the judiciary, many other mechanisms have been created in later years for the protection of rights. You may have heard about the National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes.

Part IVA- Fundamental Duties:

The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. The necessities of fundamental duties were felt during the internal emergency of 1975-77. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not enforceable by courts unless otherwise made enforceable by a parliamentary law.

The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years.

Article 51A: Fundamental Duties

1. to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
2. to cherish and follow the noble ideals which inspired our national struggle for freedom;
3. to uphold and protect the sovereignty, unity and integrity of India;
4. to defend the country and render national service when called upon to do so;
5. to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
6. to value and preserve the rich heritage of our composite culture;
7. to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;
8. to develop the scientific temper, humanism and the spirit of inquiry and reform;
9. to safeguard public property and to abjure violence;
10. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement;
11. to provide opportunities for education by the parent the guardian, to his child, or a ward between the age of 6-14 years as the case may be.

Criticism of Fundamental Duties:

• They have been described by the critics as a code of moral precepts due to their non-justiciable character. Their inclusion in the Constitution was described by the critics as superfluous. This is because the duties included in the Constitution as fundamental would be performed by the people even though they were not incorporated into the Constitution.
• Some of the duties are vague, ambiguous and difficult to be understood by the common man.
• The list of duties is not exhaustive as it does not cover other important duties like casting vote, paying taxes, family planning and so on. In fact, the duty to pay taxes was recommended by the Swaran Singh Committee.
• The critics said that the inclusion of fundamental duties as an appendage to Part IV of the Constitution has reduced their value and significance. They should have been added after Part III so as to keep them on par with Fundamental Rights.
• Swaran Singh's Committee recommended more than 10 Fundamental Duties, however, not all were included in the constitution. Those duties recommended by the committee which were not accepted were:
  • Citizens to be penalized/punished by the parliament for any non-compliance with or refusal to observe any of the duties.
  • The punishments/penalties decided by the Parliament shall not be called in question in any court on the ground of infringement of any of Fundamental Rights or on the ground of repugnancy to any other provision of the Constitution.
  • Duty to pay taxes.

Case Law:

• A.K. Gopalan Case (1950):
  Judgment: SC contented that there was no violation of Fundamental Rights enshrined in Articles 13, 19, 21 and 22 under the provisions of the Preventive Detention Act, if the detention was as per the procedure established by law. Here, the SC took a narrow view of Article 21.
   
• Golak Nath Case (1967):
  Judgment: The questions in this case were whether amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13, and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.

Written By: Navratan Badiyasar, 4th Year law student, Department of Law - Central University of Kashmir, Ganderbal, J&K
E-mail: [email protected]