CHAPTER-2 -RIGHTS IN THE INDIAN CONSTITUTION

BILL OF RIGHTS:
 A list of rights mentioned and protected by the constitution is called the ‗bill of rights‘ A democracy
must ensure that individuals have certain rights and that the government will always recognize these
rights.
 Prohibits government from thus acting against the rights of the individuals and ensures a remedy in
case there is violation of these rights.
FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION: FEATURES
 The Motilal Nehru committee had demanded a bill of rights as far back as in 1928.
A. Protected by Constitution: Fundamental Rights, unlike ordinary legal rights, are protected and
guaranteed by the constitution of the country.
B. Not Permanent, or Absolute: They are not permanent and the Parliament can curtail or repeal them
but only by a constitutional amendment act.
C. Rights are Justiciable: The rights are justiciable and allow persons to move the courts for their
enforcement, if and when they are violated.
D. Suspension of Rights: The rights can be suspended during the operation of a National Emergency
except the rights guaranteed by Articles 20 and 21.
E. Restriction of Laws: Their application to the members of armed forces, paramilitary forces, police
forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament
(Article 33).
Ordinary Rights and Fundamental Rights:
 Ordinary legal rights are protected and enforced by ordinary law,
Fundamental Rights are protected and guaranteed bythe 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.
 Judiciary has the powers and responsibility toprotect 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.
Fundamental Rights:
Right to Equality: (Art 14 to 18)
 Equality before law, equal protection of laws, Rule by law
 Prohibition of discrimination: No shall be discriminated on grounds of religion, race, caste, sex or place
of birth: Equal accessto shops, hotels, wells, tanks, bathing ghats, roads etc.
Exception: Certain provisions can be made for the women, children, citizens from any socially or
educationally backward class for their upliftment (such as reservation and access to free education).
 Equality of opportunity in public employment: provides for equality of opportunity for all citizens in
matters of employment or appointment to any public office.
Exception: In fact Article 16(4) of the constitution explicitly clarifies that a policy like reservation will not
be seen as a violation of right to equality. If you see the spirit of the Constitution, this is required for the
fulfillment of the right to equality of opportunity.
 Abolition of Untouchability: The enforcement of any disability arising out of untouchability shall be an
offence punishable in accordance with law.
 Abolition of titles: It prohibits the state from conferring any title on any citizen or a foreigner (except a
military or academic distinction).
Right to Freedom: (Art 19 to 22)
 (Art 19- Cluster of rights or six freedoms)
– freedom of speech and expression; Right to freedom of speech and expression is subject to restrictions
such as public order, peace and morality etc.
– assemble peacefully; Freedom to assemble is to be exercised peacefully and without arms.
– form associations/unions; It includes the right to form (and not to form) political parties, companies,
partnership firms, societies, clubs, organisations, trade unions or any body of persons.
– move freely throughout the territory of India; The freedom of movement has two dimensions, viz,
internal (right to move inside the country) (article 19) and external (right to move out of the country and
right to come back to the country) (article 21).
– reside and settle in any part of India; The right of outsiders to reside and settle in tribal areas is
restricted to protect the distinctive culture and customs of scheduled tribes and to safeguard their
traditional vocation and properties against exploitation.
– practise any profession, or to carry on any occupation, trade or business: It doesn’t include the right to
carry on a profession that is immoral (trafficking in women or children) or dangerous (harmful drugs or
explosives, etc,).
 Protection in respect of conviction for offences(art 20)
To ensure a fair trial in courts, the Constitution has provided three rights:
A. Double Jeopardy: no person would be punished forthe same offence more than once,
B. Ex post facto law: no law shall declare any action as illegal from a backdate, and
C. Self incrimination: no person shall be asked to give evidence against himself orherself
 Right to life and personal liberty(Art 21): declares that no person shall be deprived of his life or
personal liberty except according to procedure established by law.
 Right to education(Art 21A): declares that the State shall provide free and compulsory education to all
children of the age of six to fourteen years. This provision was added by the 86th Constitutional
Amendment Act of 2002.
 Protection against arrest and detention in certain cases (Art 22)
- Right to be informed of the grounds of arrest.
- Right to consult and be defended by a legal practitioner.
- Right to be produced before a magistrate within 24 hours, excluding the journey time.
- Right to be released after 24 hours unless the magistrate authorises further detention.
Preventive detention:-
 Sometimes a person can be arrested simply out of an apprehension that he or she islikely to engage in
unlawful activity and imprisoned for some time.This is known as preventive detention.
 It means that if the government feels that a person can be a threat to law and order or to the peace
and security of the nation, it can detain or arrest that person. This can be extended only for three
months.
Right against Exploitation: (Art 23 to 24)
 Prohibition of traffic in human beings and forced labour: It prohibits human trafficking and begar
(forced labour without payment) to protect the millions of underprivileged and deprived people of the
country.
The right provides against human trafficking in the form of:
- Selling and buying of men, women and children.
- Prostitution - Devadasis - Slavery.
 Prohibition of employment of childrenin hazardous jobs: It forbids employment of children below the
age of 14 years in dangerous jobs like factories and mines.
Right to Freedom of Religion (Art: 25 to 28)
 Freedom of conscience and free profession, practice and propagation of religion: That, the
government can imposes restrictions on the practice of freedom of religion in order to protect public
order, morality and health.
 Freedom to manage religious affairs:
 Freedom to pay taxes for promotion of any particular religion: no person shall be compelled to pay any
taxes for the promotion or maintenance of any particular religion or religious denomination.
 Freedom to attend religious instruction or worship in certain educational institutions: It states that no
religious instruction shall be provided in any educational institution wholly maintained out of State (the
territory of India) funds.
Certain Limitations:
 The government can interfere in religious matters for rooting out certain social evils.
 TheConstitution does not allow forcible conversions.
 It only gives us the right to spread information about our religion and thus attract others to it.
Cultural and Educational Rights: (Art 29 to 30)
 Protection of language, culture of minorities
Article 29(1): provides that every section of citizens residing in any part of the country have the right to
protect and conserve its own distinct language, script or culture (it provides the right to a
group/section/community of people)
Article 29(2): it says that no citizen shall be denied admission into any educational institution on grounds
only of religion, race, caste, or language (it provides the rights to an individual citizen).
 Right of minorities to establish educational institutions
Article 30(1): The right to establish and administer educational institutions of their choice.
Article 30(2): The State shall not discriminate against any educational institution managed by a minority.
Right to Constitutional Remedies (Art 32)
 Dr. Ambedkar considered the right to constitutional remedies as 'Heart and Soul of the constitution'.
Why? 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.
 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: 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: Issued by a higher court (HighCourt 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.
National Human Right Commission (NHRC):
 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 andpromoting research in the field of human rights.
 The Commission 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.
DIRECTIVE PRINCIPLES OF STATE POLICY
The chapter on Directive Principles lists mainly three things:
 The goals and objectives that we as a society should adopt;
 Certain rights that individuals should enjoy apart from the Fundamental Rights; and
 Certain policiesthat the governmentshould adopt.
Relation between Fundamental Rights and Directive Principles of State Policy:
 Fundamental Rights restrain the government from doing certain things while Directive Principles
exhort the government to do certain things.
 Fundamental Rights mainly protect the rights of individuals while Directive Principles ensure thewell-
being ofthe entire society.
Right to Property (Art 31)
 In the Constitution, originally, there was a fundamental right to acquire, possess and maintain‘
property.
 But the Constitution made it clear that property could be taken away by the government for public
welfare.
 In 1973, the Supreme Court gave a decision that the right to property was not part of the basic
structure of the Constitution and therefore, parliament had power to abridge this right by an
amendment.
 In 1978, the44th amendment to the Constitution removed the right to property from the list of
Fundamental Rights and converted it into a simple legal right under article 300A.