Fundamental Rights in the Indian Constitution- NCERT Notes UPSC

Importance of Fundamental Rights

Bill of Rights

• A democracy must ensure that individuals have certain rights and the government will always recognise these rights. 
• Most democratic countries list the rights of the citizens in the constitution itself. Such a list of rights mentioned and protected by the Constitution is called the ‘bill of rights’.
• Remedy against violation of rights: As it prohibits government from acting against the rights of the individuals.
• Protection of individuals: 
  • From person or private organization. 
  • From the organs of the government such as the legislature, executive, bureaucracy or even the judiciary.

Also read: Indian Constitution: Why and How? - NCERT Notes UPSC

Fundamental Rights in the Indian Constitution

History of Fundamental Rights

• The importance of rights was realized by the leaders of the freedom movement and they 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. 
• After independence, the Constitution listed the rights that would be specially protected and called them ‘fundamental rights’. 
• Importance of 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 Constitution itself ensures that they are not violated by the government.
  • Judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government. 
  • Not absolute or unlimited rights: As the Government can put reasonable restrictions on the exercise of fundamental rights.

Difference Between Fundamental Rights and Other Rights

Right to Equality

It tries to do away with caste, gender and other discriminations and strives to make India a true democracy by ensuring a sense of equality of dignity and status among all its citizens.

• Provides for equal access: To public places like shops, hotels, places of entertainment, wells, bathing ghats and places of worship. There cannot be any discrimination in this access on the grounds only of religion, race, caste, sex, or place of birth. 
• It prohibits any discrimination in public employment on any of the above-mentioned basis. 
• It abolished the practice of untouchability.
• It provides that the state shall confer no title on a person except those who excel themselves in military or academic field. 

The Preamble mentions two things about Equality: 

• Equality of Status. 
• Equality of Opportunity:
  • All sections of the society enjoy equal opportunities. 
  • The Constitution clarifies that the government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes.

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Right to Freedom

• Equality and freedom or liberty are most essential to a democracy.
• Liberty means freedom of thought, expression and action but it does not mean freedom to do anything that one desires or likes. 
• Freedoms are defined in such a manner that every person will enjoy her freedom without threatening freedom of others and without endangering law and order situation.

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Right to Life and Personal Liberty

It is the foremost right among rights to freedom.

• No citizen can be denied his or her life except by procedure as laid down under the law.
• No one can be denied his/her personal liberty:
  • No one can be arrested without being told the grounds for such an arrest. 
  • If arrested, the person has the right to defend himself by a lawyer of his choice. 
  • It is mandatory for the police to take that person to the nearest magistrate within 24 hours. 
  • The magistrate, who is not part of the police, will decide whether the arrest is justified or not. 
• Wider application: Various judgments of Supreme Court have expanded the scope of this right such as this right also includes right to live with human dignity, free from exploitation. 

Preventive Detention

• Sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for some time without following the above-mentioned procedure. 
• Reason:  A person can be detained or arrested if government feels that a person can be a threat to law and order or to the peace and security of the nation. 
• It can be extended only for three months. 
• After three months such a case is brought before an advisory board for review.
• Criticism:
  • Misused by the government against people for reasons other than the justified reasons.
  • It comes in conflict with right to life and personal liberty.

Other Freedoms

• There are other rights under the right to freedom but they are not absolute. Each of these is subject to restrictions imposed by the government. 
• Right to freedom of speech and expression is subject to restrictions such as public order, peace and morality etc. 
• Freedom to assemble too is to be exercised peacefully and without arms. The government may impose restrictions in certain areas declaring the assembly of five or more persons as unlawful. 

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Rights of Accused

• The Constitution ensures that accused persons would get sufficient protection. 
• No one is guilty unless the court has found that person guilty of an offence. 
• To ensure a fair trial in courts, the Constitution has provided three rights:
  • No person would be punished for the same offence more than once.
  • No law shall declare any action as illegal from a backdate.
  • No person shall be asked to give evidence against himself or herself.

Also Read: Right to Humanity

Right Against Exploitation

• In India, underprivileged people may be subjected to exploitation by their fellow human beings such as begar or forced labour without payment and buying and selling of human beings and using them as slaves. 
• Both of these are prohibited under the Constitution. 
• The Constitution forbids employment of children below the age of 14 years in dangerous jobs like factories and mines. It became more meaningful after right to education becoming a fundamental right for children.

Right to Freedom of Religion

• According to our Constitution, everyone enjoys the right to follow the religion of his or her choice. 
• Democracy has always incorporated the freedom to follow the religion of one’s choice as one of its basic principles. 

Freedom of Faith and Worship

• Everyone is free to choose a religion and practice that religion. 
• Freedom of religion also includes the freedom of conscience - a person may choose any religion or may choose not to follow any religion. 
• Freedom of religion includes the freedom to profess, follow and propagate any religion.
• Subject to certain limitations:
  • The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health. 
  • The government can interfere in religious matters for rooting out certain social evils. Such as the government has taken steps banning practices like sati, bigamy or human sacrifice. 

Issues with Right to Freedom of Religion

• Issue of forcible conversions: The Constitution has guaranteed the right to propagate one’s religion which includes persuading people to convert from one religion to other but it does not allow forcible conversions. It only gives us the right to spread information about our religion to attract others.

Equality of All Religions

• Being a country, which is home to several religions, it is necessary that the government must extend equal treatment to different religions.
• Not favouring any particular religion: 
  • India does not have any official religion and there is a guarantee that government will not discriminate on the basis of religion in giving employment.
  • The state-run institutions will neither preach any religion or give religious education nor will favour persons of any religion. 

Cultural and Educational Rights

• Our Constitution believes that diversity is our strength. Therefore, one of the fundamental rights is the right of the minorities to maintain their culture. 
• Status of Minorities:
  • It is not dependent only upon religion and includes linguistic and cultural minorities.
  • Minorities are groups that have common language or religion and are outnumbered by other social group in a particular part of the country or in the country as a whole.
  • They have their own culture, language and a script and have the right to conserve and develop these. 
• All minorities, religious or linguistic, can set up their own educational institutions. 
• The government will not, while granting aid to educational institutions, discriminate against any educational institution on the basis that it is under the management of minority community.

Right to Constitutional Remedies

• It is a means through which fundamental rights could be practiced and defended.
• Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’ 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 can issue orders and give directives to the government for the enforcement of rights. 

The Courts can Issue Various Special Orders known as Writs

Apart from the judiciary, many other mechanisms have been created for the protection of rights such as the National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes, etc. 

Directive Principles of State Policy

The constitution maker thought that the moral force behind these guidelines would ensure that the government would take them seriously. They expected that the people would also hold the governments responsible for implementing these directives. So, a separate list of policy guidelines is included in the Constitution. The list of these guidelines is called the Directive Principles of State Policy.

• Need:
  • The constitution makers knew that independent India was going to face many challenges such as to bring about equality and well-being of all citizens. 
  • They thought that certain policy direction was required for handling these problems. 
  • They did not want future governments to be bound by certain policy decisions. 
• Non-justiciable: These guidelines were incorporated in the Constitution, but they were not made legally enforceable i.e., parts of the Constitution that cannot be enforced by the judiciary. 

Directive Principles Includes

• The chapter on Directive Principles lists mainly three things:
  • The goals and objectives that society should adopt.
  • Certain rights that individuals should enjoy apart from the Fundamental Rights.
  • Certain policies that the government should adopt. 

Some of the Directive Principles

• Examples of DPSPs Implementation: 

• The governments passed several zamindari abolition bills, nationalised banks, enacted numerous factory laws, fixed minimum wages etc.
• Several efforts to give effect to the Directive Principles include the right to education, formation of Panchayati raj institutions all over the country, the mid-day meal scheme etc.

Fundamental Duties of Citizens

• History:
  • They were inserted by the 42nd amendment, 1976 to the Constitution.
  • In all, ten duties were enumerated. 
  • The Constitution does not say anything about enforcing these duties. 
• Citizens must abide by the Constitution, defend his country, promote harmony among all citizens, protect the environment. 
• Does not change the status of Fundamental rights: Our Constitution does not make the enjoyment of rights dependent or conditional upon fulfilment of duties. Thus, the inclusion of fundamental duties has not changed the status of our fundamental rights.

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Relationship Between Fundamental Rights and Directive Principles

• It is possible to see both as complementary to each other.
• When government intends to implement Directive Principles of State Policy, it can come in conflict with the Fundamental Rights of the citizen. 
• History:
  • Rise of problem: When the government sought to pass laws to abolish zamindari system which were opposed on the ground that they violated right to property. 
  • The government amended the Constitution to give effect to the Directive Principles of State Policy keeping in mind the societal needs of individuals.
• Long legal battle:
  • Position of executive: The government claimed that rights can be abridged for giving effect to Directive Principles as rights were a hindrance to welfare of the people.
  • Position of judiciary: The court held the view that FR were so important and sacred that they cannot be limited even for purposes of implementing Directive Principles.
• Complicated debaterelated to the amendment of the Constitution:
  • Government stand: Parliament can amend any part of the Constitution.
  • Court stand: Parliament cannot make an amendment that violated Fundamental Rights. 
• Settlement of controversy:
  • In Kesavananda Bharati case, the Supreme Court said that there are certain basic features of the Constitution and these cannot be changed by Parliament. 

Interesting Points

• South African Constitution: It was inaugurated in December 1996 after the dissolution of the Apartheid government. It says that its Bill of Rights is a cornerstone of their democracy.
• Independent organisations like the People’s Union for Civil Liberties (PUCL) or People’s Union for Democratic Rights (PUDR) have been working as watchdogs against the violations of rights. 
• National Human Rights Commission (NHRC):
  • It was established in 1993.
  • Composition: Former chief justice of the Supreme Court of India, a former judge of the Supreme Court, a former chief justice of a High Court and two other members who have knowledge and practical experience in matters relating to human rights. 
  • The Commission’s functions include:

• Inquiry at its own initiative or on a petition presented to it by a victim into complaint of violation of human rights,
• Visit to jails to study the condition of the inmates,
• Undertaking and promoting research in the field of human rights, etc. 

• The Commission generally receives complaints related to custodial death, custodial rape, disappearances, police excesses, failure in taking action, indignity to women, etc. 
• It does not have the power of prosecution. It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.
• Jotirao Phuley (1827-1890) was a radical social reformer from Maharashtra.

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