Fundamental Rights

The Right to Constitutional Remedies is the mechanism through which all other Fundamental Rights are defended and enforced. Dr. Ambedkar considered it the "heart and soul of the constitution." It gives every citizen the right to approach a High Court or the Supreme Court to get any Fundamental Right restored in case of violation. The Supreme Court and High Courts can issue orders and give directives to the government for the enforcement of rights. These special orders are called writs. Five writs are described: **Habeas Corpus** ("you must have the body"): The court orders that an arrested person be presented before it. It can also order the release of an arrested person if the manner or grounds of arrest are not lawful or satisfactory. **Mandamus** ("we command"): Issued when the court finds that a particular officeholder is not doing their legal duty and thereby infringing on the rights of an individual. **Prohibition:** Issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction. It stops the lower court from proceeding. **Quo Warranto** ("by what authority"): If the court finds that a person is holding office but is not entitled to hold that office, it issues this writ to restrict that person from acting as an office holder. **Certiorari** ("to be certified"): 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, other mechanisms created for protection of rights include: National Commission on Minorities, National Commission on Women, National Commission on Scheduled Castes, and the National Human Rights Commission (established by law). The Right to Constitutional Remedies is enshrined in Article 32 of the Constitution. This right is fundamental in establishing what Laxmikanth describes as a "government of laws and not of men." Fundamental Rights are meant for promoting the ideal of political democracy and prevent the establishment of authoritarian and despotic rule in the country. They protect the liberties and freedoms of the people against invasion by the State and operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.

The Directive Principles of State Policy are policy guidelines incorporated in the Constitution that are not legally enforceable — they are non-justiciable. This means that if a government fails to implement a Directive Principle, a citizen cannot go to court asking the court to instruct the government to implement that policy. The framers incorporated Directive Principles because: (1) they knew independent India would face challenges of equality and well-being; (2) they wanted policy direction without binding future governments to specific policy decisions; (3) they believed the moral force behind these guidelines would ensure governments took them seriously; (4) they expected people would hold governments responsible for implementing these directives. **What Directive Principles contain:** Three categories: 1. Goals and objectives that society should adopt 2. Certain rights that individuals should enjoy apart from Fundamental Rights 3. Certain policies that the government should adopt **Relationship with Fundamental Rights:** - Fundamental Rights restrain the government from doing certain things (negative obligations) - Directive Principles exhort the government to do certain things (positive obligations) - Fundamental Rights mainly protect individual rights; Directive Principles ensure well-being of entire society - They are complementary, not contradictory in spirit **Tension between Fundamental Rights and Directive Principles:** When the government sought to pass zamindari abolition bills, these were opposed as violations of the right to property. The government amended the Constitution to give effect to Directive Principles, leading to a long legal battle. The Kesavananda Bharati case (Supreme Court) settled this by holding that certain basic features of the Constitution cannot be changed by Parliament — establishing the doctrine of basic structure. **Governments' efforts to implement Directive Principles:** Examples cited include: zamindari abolition bills, nationalisation of banks, factory laws, minimum wage legislation, promotion of cottage industries, reservations for SC/ST, right to education, formation of panchayati raj institutions, employment guarantee programmes, mid-day meal scheme.

The Right to Freedom is described as one of the two most essential rights in a democracy, alongside equality. It covers Articles 19–22. **Right to Life and Personal Liberty (Article 21):** The foremost right. No citizen can be denied life except by procedure as laid down under law. No one can be arrested without being told the grounds for such arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Police must take the arrested person to the nearest magistrate within 24 hours. The magistrate, who is not part of the police, decides whether the arrest is justified. The Supreme Court has expanded the scope of Article 21 through judicial interpretation to include: the right to live with human dignity free from exploitation; the right to shelter and livelihood (on the ground that no person can live without means of livelihood). Article 21 text (as quoted in the source): "No person shall be deprived of his life or personal liberty except according to procedure established by law." **Preventive Detention:** A person can be arrested out of apprehension that they are likely to engage in unlawful activity, without following the ordinary arrest procedure. This preventive detention can be extended for only three months. After three months, the case is brought before an advisory board for review. The text notes this provision has often been misused and that there is a "clear tension between right to life and personal liberty and the provision for preventive detention." **Other Freedoms:** The Right to Freedom also includes other rights that are not absolute: - Freedom of speech and expression — subject to restrictions such as public order, peace, and morality - Freedom to assemble — must be peaceful and without arms; government can declare assembly of five or more persons unlawful in certain areas **Rights of Accused (Articles covering fair trial):** - No person shall be punished for the same offence more than once (protection against double jeopardy) - No law shall declare any action illegal from a backdate (protection against ex post facto law) - No person shall be asked to give evidence against himself or herself (protection against self-incrimination)

The Right to Freedom of Religion guarantees every person the right to follow the religion of his or her choice. It is described as "a hallmark of democracy." **Freedom of faith and worship:** Everyone is free to choose a religion and practice it. Freedom of religion includes freedom of conscience — a person may choose any religion or choose not to follow any religion at all. Freedom includes the right to profess, follow, and propagate any religion. **Limitations:** Freedom of religion is not unlimited. The government can impose restrictions to protect public order, morality, and health. The government can interfere in religious matters to root out social evils — for example, banning practices like sati, bigamy, or human sacrifice. Such restrictions cannot be opposed in the name of interference in the right to freedom of religion. **Right to propagate:** The Constitution guarantees the right to propagate one's religion, including persuading people to convert from one religion to another. However, the Constitution does not allow forcible conversions. It only gives the right to spread information about one's religion and thus attract others to it. **Equality of all religions (Secularism):** India has no official religion. There is no requirement to belong to any particular religion to hold public office (prime minister, president, judge, etc.). Institutions run by the state will not preach any religion or give religious education, nor will they favour persons of any religion. The text states "the objective of these provisions is to sustain and nurture the principle of secularism." Religion is a significant factor even in electoral politics in India, despite India being a secular nation. Political parties often use communal propaganda and exploit religious sentiments of voters.

The Right against Exploitation protects underprivileged and deprived citizens from being exploited by fellow human beings. Two forms of exploitation are specifically prohibited: **Begar (forced labour without payment):** Also described as bonded labour. This was historically imposed by landlords, money lenders, and other wealthy persons. Employing a person to work for less than the minimum prescribed wage has been held to amount to begar — a violation of this Fundamental Right. The Supreme Court (in the 1982 Asian Games workers case) accepted the plea that workers paid below minimum wage were subjected to forced labour and directed the government to ensure proper wages. **Buying and selling of human beings (slavery):** Both begar and slavery are prohibited. Bonded labour has been declared a crime and is punishable. The text notes that some form of bonded labour still continues in the country, especially in brick kiln work. **Child labour:** The Constitution forbids employment of children below the age of 14 years in dangerous jobs like factories and mines. The text notes that with child labour made illegal and right to education becoming a Fundamental Right for children, "this right against exploitation has become more meaningful." The Right against Exploitation is enshrined in Articles 23–24 of the Constitution. Article 23 prohibits traffic in human beings and forced labour, while Article 24 prohibits the employment of children in factories and similar dangerous establishments. This right is available to both citizens and foreigners (except enemy aliens).

The Right to Equality covers Articles 14 through 18 and is aimed at eliminating discrimination in Indian society. Its scope includes: **Equal access to public places:** No discrimination in access to shops, hotels, places of entertainment, wells, bathing ghats, and places of worship on the basis of caste, creed, colour, sex, religion, or place of birth. **Non-discrimination in public employment:** Prohibits discrimination in government employment on the same grounds listed above. **Abolition of untouchability:** The practice of untouchability is identified as "one of the crudest manifestations of inequality" and has been abolished under the Right to Equality. **No state-conferred titles:** The state shall confer no title on a person except in military or academic fields. The Preamble mentions two aspects of equality: equality of status and equality of opportunity. Equality of opportunity means all sections of society enjoy equal opportunities. However, in a society with deep social inequalities, the Constitution clarifies that the government can implement special schemes for improving conditions of children, women, and the socially and educationally backward classes. **Article 16(4)** explicitly states that a policy of reservation for any backward class not adequately represented in state services shall not be seen as a violation of the right to equality. The text notes that reservations in jobs and admissions are required "for the fulfilment of the right to equality of opportunity." The Right to Equality is described as striving to "make India a true democracy by ensuring a sense of equality of dignity and status among all its citizens." The Right to Equality uphold "the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation" and is "meant for promoting the ideal of political democracy."

Fundamental Rights are the rights specially listed and protected in Part Three of the Indian Constitution. The Motilal Nehru committee demanded a bill of rights as far back as 1928, and when the Constitution was being prepared, there was no disagreement on inclusion of rights. The key distinction between Fundamental Rights and ordinary legal rights is: - Ordinary legal rights are protected and enforced by ordinary law and may be changed by the legislature through ordinary law-making process. - Fundamental Rights are protected and guaranteed by the Constitution itself. They can only be changed by amending the Constitution. No organ of the government — legislative, executive, or judicial — can act in a manner that violates Fundamental Rights. The judiciary has the powers and responsibility to protect Fundamental Rights: executive as well as legislative actions can be declared illegal if they violate Fundamental Rights or restrict them unreasonably. However, Fundamental Rights are not absolute or unlimited. Government can impose reasonable restrictions under specified circumstances. The rights of a person may be threatened both by private actors and by organs of government. The Constitution protects against both: it binds the government to protect the individual against private violations, and it prevents government organs themselves from violating rights. The six categories of Fundamental Rights covered in the chapter are: (1) Right to Equality, (2) Right to Freedom, (3) Right against Exploitation, (4) Right to Freedom of Religion, (5) Cultural and Educational Rights, and (6) Right to Constitutional Remedies.