Democratic philosophy considers some of the individual rights as basic or fundamental. These rights must be guaranteed by the state and secured against encroachment by Governmental agencies. In democratic countries such rights are enshrined in the constitution of the state. India has followed their example. Pr. B.R. Ambedkar emphasized the two fold object” of the Fundamental Rights. “First, every citizen must be in a position to claim these rights. Secondly, they must be binding on every authority … upon every authority which has got either the-power to make laws or the power to have discretion vested in it.”
Accordingly, a comprehensive list of Fundamental Rights is included in the Indian constitution. These rights are grouped under six categories„(1) The right to equality (2) The right to freedom (3) The- right against exploitation (4) The right to freedom of religion, (5) cultural rights and educational rights and (6) The right to constitutional remedies:
(1) Right to Equality (Art. 14 to 18)
The right to equality includes the following:
- Equality before law – The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
- Prohibition against discrimination – The state shall not discriminate on the grounds of religion, race, sex, and place of birth or any of them.
- Equality of opportunity in matters of public employment – There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. No citizens, on grounds only of religion race, sex, caste, descent, place of birth, residence or any of them, be-ineligible for, or discriminated against in respect of any employment or office under the state.
- Abolition of untouchabiiity – Untouchability is abolished and its practice in any form is forbidden. Untouchability is an offence punishable in accordance with law.
- Abolition of titles – No title, not being 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 – (Articles 19-22)
(i) All citizens have the right;
- To freedom of speech and expression.
- To assemble peacefully without arms.
- To form associations and unions.
- To move freely throughout the territory of India.
- To reside and settle in any part of India.
- To practice any profession or to carry on any occupation, trade or business.
(ii) Protection in respect of conviction for offences:
- No person shall be convicted of an offence except in violation of law.
- No person shall be prosecuted and punished for the same offence more than once.
- No person accused of any offence shall be compelled to be a witness against himself.
(iii) Protection of life and liberty:
- No parson who is arrested shall be detained in custody without being informed as soon as may not be, of the grounds, for such arrest, nor shall be denied the right to be defended by a legal practitioner of his choice.
- Every person who is arrested and detained in custody shall be produced before a magistrate within the period of twenty-four hours, and no person shall be detained in custody without the authority of a magistrate.
(3) Right against Exploitation: (Art – 23-24)
It includes the following:
- Traffic in human beings is prohibited.
- ‘Begarry’ and other similar forms of forced labor are prohibited; any contravention of this provision is punishable in accordance with law.
- No child below the age of fourteen shall be employed to work in any factory or mine or engaged in hazardous employment.
(4) Right to freedom of Religion: (25-28)
It includes the following:
- All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
- Every religious denomination or section thereof has the right to establish and maintain institutions for religious arid charitable purpose, to manage its own affairs in matters of religion to own and acquire movable and immovable property, and to administer such property in accordance with law.
- No person shall be compelled to pay any taxes, the proceeds of which are meant for any particular religion.
- No religious instruction shall be provided in any educational institution wholly maintained out of state funds.
(5) Cultural and educational Rights: (29-31)
These include the following:
- Any section of the people of India having its own language, scripts or culture shall have a right to conserve the same.
- All minorities, whether based on religion or language have the right to establish and administer educational institutions or their choice.
- No citizen shall be denied admission to any educational institution maintained by the state or receiving aid out of state funds on grounds only of regions race, caste, language or any of them.
- 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: (32)
It includes the following:-
- The right to move the Supreme Court by appropriate proceeding for the enforcement of the rights is guaranteed.
- The Supreme Court has the right to issue directions or orders or writs in the nature of habeas corpus, mandamus prohibition, quo warrantor and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by this part.
Critical estimate of the fundamental rights
- Although the rights guaranteed are important, they are mostly negative. Positive rights such as the right to work, the right to education, medical care, maintenance in old age and sickness and the right to housing do not find place in the Indian constitution. In the socialist countries these rights are guaranteed to the citizens. The critics argue that the absence of positive rights indicates that our constitution defends the rights of exploiters and property owners.
- The right to equality is not absolute and is subjected to certain exceptions. The constitution empowers the state to make special provisions for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Caste and the Scheduled Tribes. Accordingly there is reservation in Government service for these classes. Seats are also reserved for the Scheduled Caste and the Scheduled Tribe in the Central and State Legislatures. Similarly, there is reservation for the Anglo-Indian community. The critics argue that reservation whether in legislature of reservation argue that it aims at establishing social and economic democracy.
- The right to freedom is very much restricted. The state has enormous powers to control the right to freedom in the interests of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, and decency of morality or in relation to contempt of court, defamation or incitement to an offence. The critics therefore suggest that the chapter on fundamental rights should have been described as chapter on Limitations on Fundamental Rights.
- Dr. Ambedkar refuted this criticism by pointing out that no rights can be absolute and that under the American constitution also they are not absolute and have been curtailed through the law of Congress or the judgments of the United States Supreme Court. Besides although the Indian Parliament has been authorized to impose reasonable restrictions on these rights, it is for the courts to decide as to what restrictions are considered to be reasonable. It may further be pointed out that the interests of an individual or a group are always subordinate to the interests of the nation as a whole.
- The special rights guaranteed to the minorities also violate the principal of equality. The minorities have the right to establish and administer educational institutions and at the same time they have the right to get financial aid from the state for their institutions, but the Hindus have no such right. Thus the minorities have the right to spread their religion through their educational institutions, but the Hindus have no such right. This has given rise to the feeling among the Hindus that in this country it is disadvantageous to be Hindus, and many Hindu communities have stared clamoring for a minority status for themselves.
- The President has the power to proclaim Emergency in certain conditions. While a proclamation of emergency is in operation the Fundamental Rights can be suspended including the rights to move any court for the enforcement of such rights.
- No Fundamental Rights to Property- Articles 19 (1) (f) of the constitutions guaranteed to all citizens the rights “to acquire hold and dispose of property.” This Article has been repealed by the 44th Amendment Act 197g. Now the right to property is no more a fundamental right. It has been made a legal right under Article 300 A, which lies down: “No person shall be deprived of his property save by authority of law. The result is’ that if an individual’s property is taken away by a public official without legal authority or in excess of the power conferred by law in this behalf, he can no longer have speedy remedy direct from the Supreme Court under Article 32. He shall have to find his remedy from the High Court under Article 226 or by an ordinary suit.
- Parliament has acquired the right to take away or abridge the Fundamental Rights by amending the constitution under Article 368. The 42nd Amendment Act had given primacy to Directive principles of state policy over the Fundamental Rights by conferring on Parliament unlimited power to amend the constitution. But those sections of the 92nd Amendment were struck down by the Supreme Court in 1980 and the primacy of Fundamental Rights was re-established.