It has always been baffling problem for the constitution makers as to how to council law and liberty, authority and freedom.
If power is necessary for the maintenance of order in society the abuse of power by those in authority is also likely. This likelyhood of misuse of power has been sought to be minimised in modern constitution making by incorporation certain rights as fundamental in the constitution of the country.
The fundamental rights embodied in part III of the constitution, guarantee to each citizens basic substantive and procedural protections against the state.
Enunciation of the Fundamental Rights is not a distinctive feature of the Indian constitution, as these are found many Written constitution of most of the European States formed after world war I.
The French Declaration of Rights, the Bill of the right of the U.S. Constitution and the universal Human Rights character, together with the lists of similar rights given in other constitution; provided the necessary guidance to the framers of our constitution in selecting a set of rights which could best suit the political conditions prevalent in India.
The fundamental rights as contained in our constitution are grouped under seven categories. They are :
(1) Right to Equality:
Article 14 to 18 of the constitution deal with the right to equality. Article 14 guarantees to all person equality before law and equal protection within the territory of India. In other words this article asserts the supremacy of law or Rule of Law.
Every man irrespective of his status is subject to the same law and the same courts. No law will be held constitutional if it is discriminatory in its character. This Article includes on arbitrariness parts of the executive and makes all citizens including officials subject to the same law and same courts.
Article 15 provides that the state cannot discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth; nor will any citizen be subject to any disability on any one of the above ground in regard to assess to shops, hotels, places of public entertainment or the use of well, tanks, ghats, roads and other public places wholly or partly maintained out of state funds.
Article 16 guarantees equality of opportunity in matters relating to employment or appointments to Public Services to all citizens irrespective of religion, sex, decent, place of birth or residence. Under Article 17 untouchability in any form has been declared unconstitution. Article 18 lays down that no titles no being military or academic distinction shall be confirmed by the state.
The above mentioned Article thus, clearly establishes that all the citizens have been guaranteed political and social equality. The constitution protects them against discriminatory treatment so far as law is concerned all are equal.
Exception to the equality before laws:
The following are the exceptions to the rule of equality before law.
(1) Foreign ambassadors:
They represent their sovereign and therefore enjoy all immunities which their sovereigns could claim on a foreign and.
(ii) Foreign Sovereign:
A sovereign of the foreign state cannot be tried by ordinary courts.
(iii) Foreign enemies:
The alien enemies cannot be tried by ordinary courts as regards to act of war.
The President and Governor also have been given certain exceptions in regard to legal proceedings against them.
(2) Right to Freedom:
Article 19 to 22 guarantee the right to freedom of these Articles, Article 19 is the most significant of this Article guarantee six fundamental freedoms. These are :
(a) Freedom of speech and expression;
(b) Freedom to assemble peacefully and without arms;
(c) Freedom to form associations or unions;
(d) Freedom to move freely throughout the territory of India;
(e) Freedom to reside and settle in any part of India;
(f) Freedom to practice any profession, or to carry on any occupation, trade or business.
However, the enjoyment of these freedoms is subject to certain conditions. Limitations may be imposed in the interests of security of state, friendly relations with foreign states, public order, decency to an offence. The right to assemble is subject to the conditions that the assembly must be peaceful unarmed.
The state may impose reasonable restriction interests of public order. It may be worthy of note the 7 freedoms guaranteed by the constitution are not absolute, the state has power to impose reasonable restrictions on their enjoyment.
Article 20, 22 present the individual’s life and personal liberty, under Article 20 “no persons shall be convinced to any offence except for violation of law in force at the time the commission of the act charged as an offence, the subject to a penalty greater than that which might have been inflicted under the law force at the time of the commission of the offence.”
The constitution prohibits the enactment of ex-post facto laws. Article 21 secures the most cherished of all fundamental rights. Under the said Article “no person shall be deprived of his life or personal liberty except according to the procedure established by law.”
The phrase ‘procedure established by law is a technical one and it is not the place to examine the phrase ‘procedure established by law’ carries a meaning different from ‘due process of law’.
A phrase procedure established by law the constitution maker have limited the authority of the court in the hands of the legislature to lay down any procedure subject of cause, to the limitation Article 14, 20 and 22.
Moreover a person can be detained without cause shown under Preventive Detention Act for a period of two months. The period can be further extended by a board consisting of members equivalent to the status of judges of a High Court.
Such a provision entitled lot of criticism at the hands of the critics on the ground that the party in power will misuse this ‘Preventive Detention’ power to harass the opposition. The majority party however consider it as the crying need of the hour.
(3) Right against exploitation:
Article 23 and 24 deal with this Right. Article 23 prohibits traffic in human beings including traffic in women for immoral purposes, begari and other similar forms of forced labour. Article 24 provides that “no child below the age of fourteen years shall be employed to work in the factory or mine or engaged in any other hazardous employment.”
However the state may impose compulsory service for public proposes but in doing so “the state shall not make any discrimination on grounds only of religion, race, caste or class or any one of them”.
It must be remarked that in prohibiting the employment of children below the age of fourteen years our constitution has gone in advance of that of the United States where there is no constitutional prohibitions against employment of children in industry.
(4) Right to freedom of Religion:
This right is dealt under Articles 25 to 28. Article 25 gives freedom of conscience and freedom to profess, practise and propagate any religion subject to public order morality and health. The freedom of religion guaranteed by this Article has two aspects.
In its positive aspect this Article safeguards the free exercise of religion by all persons. Negatively it prohibits the state to compel by law any persons to accept any particular creed or religion. This Article guarantees and only the right to entertain any religious belief which may be approved of by one’s judgement or conscience but also the right to profess, practise and propagate any religion.
The state may, however, make laws for social establishments and maintain institutions for religion and charitable purposes to manage its own affairs in matters of religion, to own acquire movable and immovable property and to administer such property in accordance with law under article 27, “no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination”.
Under Article 28 no religious instruction shall be imparted in any educational institution wholly maintained out of state funds. The obvious implication of these Article relating to the freedom of religion is that India is a secular state and that the state will not favour any particular religion nor discriminate against any. In other words., the state will observe an attitude of strict impartiality in matters of religion.
(5) Cultural and Educational Rights:
Article 29 and 30 ensure to every section of citizens the protection of their language, script or culture. Article 29 also provides that “no citizen shall be denied admission into any educational institution maintained by the state receiving aid out of state funds on grounds of religion, race, caste, language or any of them”.
Article 30 “guarantees to all minorities whether based on religion or language the right to establish and administer educational institutions of their choice and declares that in granting aid to educational institutions, the state shall not discriminate against any educational institution on the ground that it is managed by a religious or linguistic minority. “
It is a matter to be considered if these provisions ensuring protection to linguistic minorities are not likely to hinder the growth of national unity, national language and national culture of India.
According to the forty fourth Amendment Act 1978, “In making any law providing for the compulsory acquisition of any property of an educational institution established and administrated by a minority, referred to in clause (1) the state shall ensure that the amount fixed by or determined under such law for the acquisition of such property such as would not restrict or abrogate the right guaranteed under that clause”.
Right to property has been abolished as fundamental rights by the constitution amendment Act only some portion of it has been retained.
(6) Right to constitutional Remedies:
“A mere declaration and insertion of fundamental rights is useless unless there is an effective and easy remedy or machinery, provided in the constitution itself for enforcing these rights”. Article 32 of the constitution confers upon every person the right to move the Supreme Court by appropriate proceedings for the enforcement of his fundamental rights.
The appropriate proceedings or remedies are applications for the issue of directions or orders or writes including writs in the nature of habeas corpus. Mandamus, prohibitions, quo-warranto and certiorari. These writs can also be issued by the High Court for protecting fundamental rights. Here the jurisdiction of the Supreme Court and High Court is concurrent.
The provision relating to constitutional remedies was a aptly described by Dr. Ambedkar as the “heart and soul of the constitution”. And in fact it is so because it gives the assurances that the fundamental rights given by the constitution of India are not merely rights on paper but on theartrary are justiciable and that the Supreme Court cannot refuse to entertain an application seeking protection against violation of fundamental rights.
Before this discussion of fundamental rights is concluded it may be remarked that the fundamental rights including the right to move the Supreme Court may be suspended by the President during the proclamation of an emergency by him. Secondly, it may also be noted that our fundamental rights are not absolute. They are subject to certain restrictions and we can enjoy them only within certain limit.
The critics have pointed out that so many limitations of such a wide importance have been placed on the enjoyment of fundamental rights that nothing substantial as left out of them. The phrases like ‘decency’, ‘morality’, ‘public’, ‘order’, ‘health’, security of state etc. are so general and of so wide importance that it would be simple to invoke them to certain the rights guaranteed by the constitution.
It is therefore contended by the critics that the hand that gave them has taken away also. Preventive Detention Act which impairs personal liberties is also considered a serious threat to right to personal liberty. Special concessions to the scheduled caste and tribes in services at the cost of efficiency is said to the antagonistic to the concept of equality of opportunity.
Likewise children below the age of 14 have been debarred from a job in the factories without alternative provision for livelihood.
Retaining right to religion on a country which has already suffered on account of religious fanaticism and bigotry is hardly desirable.
Right to property is an eyesore for the communists. They are more keen for the inclusion of right to work so that the country is rid of unemployment and appalling poverty.
There is some weight in these points of criticism. There is a scope for improvement of due attention is paid to these comments.
However, it may be said that the limitations imposed upon the enjoyment of fundamental rights make a sense and are in a way necessary to ensure the security of state and equal enjoyment of rights by all. Absolute and unrestricted rights are not possible in a civilised society. In every country the rights of individuals are restricted directly or indirectly.
In spite of the several limitations on our rights the fact remains that these rights are fundamental as they have been incorporated on the fundamental law of the land and are justiciable.