Fundamental Rights, Directive Principles and Fundamental Duties of India
Encyclopedia
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. These sections comprise a constitutional bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India
Constituent Assembly of India
The Constituent Assembly of India was elected to write the Constitution of India, and following independence served as the nation's first Parliament.-Nature of the Assembly:...
.
The Fundamental Rights
Fundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
are defined as the basic human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste
Caste
Caste is an elaborate and complex social system that combines elements of endogamy, occupation, culture, social class, tribal affiliation and political power. It should not be confused with race or social class, e.g. members of different castes in one society may belong to the same race, as in India...
, creed or gender. They are enforceable by the courts, subject to specific restrictions.
The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws.
The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not legally enforceable.
History
The Fundamental Rights and Directive Principles had their origins in the Indian independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Indian state. The development of constitutional rights in India was inspired by historical documents such as England's Bill of RightsBill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
, the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
and France's Declaration of the Rights of Man
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
. The demand for civil liberties formed an important part of the Indian independence movement, with one of the objectives of the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
(INC) being to end discrimination between the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted by the INC between 1917 and 1919. The demands articulated in these resolutions included granting to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian members, political power, and equal terms for bearing arms as British citizens.
The experiences of the First World War
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
, the unsatisfactory Montague-Chelmsford reforms of 1919, and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding equality of status between Indians and the British to assuring liberty for all Indians. The Commonwealth of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental rights – individual liberty, freedom of conscience, free expression of opinion, freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, non-discrimination on the ground of sex, free elementary education and free use of public spaces. In 1927, the INC resolved to set up a committee to draft a "Swaraj Constitution" for India based on a declaration of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal Nehru
Motilal Nehru
Motilal Nehru was an early Indian independence activist and leader of the Indian National Congress, who remained Congress President twice, and...
, was constituted in 1928. Its report made a number of recommendations, including proposing guaranteed fundamental rights to all Indians. These rights resembled those of the American Constitution and those adopted by post-war European countries, and several of them were adopted from the 1925 Bill. Several of these provisions were later replicated in various parts of the Indian Constitution, including the Fundamental Rights and Directive Principles.
In 1931, the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
, at its Karachi
Karachi
Karachi is the largest city, main seaport and the main financial centre of Pakistan, as well as the capital of the province of Sindh. The city has an estimated population of 13 to 15 million, while the total metropolitan area has a population of over 18 million...
session, adopted a resolution committing itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to exploitation, providing social security and implementing land reforms. Other new rights proposed by the resolution were the prohibition of State titles, universal adult franchise
Universal suffrage
Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
, abolition of capital punishment and freedom of movement. Drafted by Jawaharlal Nehru
Jawaharlal Nehru
Jawaharlal Nehru , often referred to with the epithet of Panditji, was an Indian statesman who became the first Prime Minister of independent India and became noted for his “neutralist” policies in foreign affairs. He was also one of the principal leaders of India’s independence movement in the...
, the resolution, which later formed the basis for some of the Directive Principles, placed the primary responsibility of carrying out social reform on the State, and marked the increasing influence of socialism and Gandhian philosophy on the independence movement. The final phase of the Independence movement saw a reiteration of the socialist principles of the 1930s, along with an increased focus on minority rights – which had become an issue of major political concern by then – which were published in the Sapru Report in 1945. The report, apart from stressing on protecting the rights of minorities, also sought to prescribe a "standard of conduct for the legislatures, government and the courts".
During the final stages of the British Raj
British Raj
British Raj was the British rule in the Indian subcontinent between 1858 and 1947; The term can also refer to the period of dominion...
, the 1946 Cabinet Mission to India
1946 Cabinet Mission to India
The British Cabinet Mission of 1946 to India aimed to discuss and plan for the transfer of power from the British Raj to Indian leadership, providing India with independence under Dominion status in the Commonwealth of Nations...
proposed a Constituent Assembly to draft a Constitution for India as part of the process of transfer of power. The Constituent Assembly of India, composed of indirectly elected representatives from the British provinces and Princely state
Princely state
A Princely State was a nominally sovereign entitity of British rule in India that was not directly governed by the British, but rather by an Indian ruler under a form of indirect rule such as suzerainty or paramountcy.-British relationship with the Princely States:India under the British Raj ...
s, commenced its proceedings in December 1946, and completed drafting the Constitution of India by November 1949. According to the Cabinet Mission plan, the Assembly was to have an Advisory Committee to advise it on the nature and extent of fundamental rights, protection of minorities and administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947 with 64 members, and from among these a twelve-member sub-committee on Fundamental Rights was appointed under the chairmanship of J.B. Kripalani in February 1947. The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year, adopting the drafts of most of them by December 1948. The drafting of the Fundamental Rights was influenced by the adoption of the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
by the U.N. General Assembly and the activities of the United Nations Human Rights Commission, as well as decisions of the U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution. The Directive Principles, which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts of the Indian independence movement, and were inspired by similar principles contained in the Irish Constitution. The Fundamental Duties were later added to the Constitution by the 42nd Amendment
Forty-second amendment of the Indian Constitution
The Forty-second Amendment of the Constitution of India, enacted in 1976, attempted to reduce the power of the Indian Supreme Court and High Courts to pronounce upon the constitutional validity of laws...
in 1976.
Fundamental Rights
The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society. Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. They act as limitations on the powers of the legislature and executive, under Article 13, and in case of any violation of these rights the Supreme Court of India
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
and the High Courts of the states
High Courts of India
India's unitary judicial system is made up of the Supreme Court of India at the national level, for the entire country and the 21 High Courts at the State level. These courts have jurisdiction over a state, a union territory or a group of states and union territories...
have the power to declare such legislative or executive action as unconstitutional and void. These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India
Indian nationality law
The Indian citizenship and nationality law and the Constitution of India provides single citizenship for the entire country. The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India...
.
The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. In the Kesavananda Bharati v. State of Kerala case in 1973, the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure
Basic structure
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...
of the Constitution. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment
Amendment of the Constitution of India
Amendment of the Constitution of India is the process of making changes to the nation's fundamental law. Changes to the Indian constitution are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India, and certain amendments must also be...
, passed by a two-thirds majority of each House of Parliament
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
. The imposition of a state of emergency
State of Emergency in India
A state of emergency in India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when he perceives grave threats to the nation from internal and external sources or from financial situations of crisis...
may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces
Indian Armed Forces
The Indian Armed Forces are the military forces of the Republic of India. They consist of the Army, Navy and Air Force, supported by three paramilitary forces and various inter-service institutions such as the Strategic Forces Command.The President of India is...
and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.
Right to Equality
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–16, which collectively encompass the general principles of equality before law and non-discrimination, and Articles 17–18 which collectively further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection
Reservation in India
Reservation in India is a form of affirmative action designed to improve the well being of socially backward and underrepresented communities of citizens in India. There are laws in place, wherein a certain percentage of total available slots in Jobs and Education are set aside for people from...
. Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion.
The practice of untouchability
Dalit
Dalit is a designation for a group of people traditionally regarded as Untouchable. Dalits are a mixed population, consisting of numerous castes from all over South Asia; they speak a variety of languages and practice a multitude of religions...
has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and titles of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna
Bharat Ratna
Bharat Ratna is the Republic of India's highest civilian award, awarded for the highest degrees of national service. This service includes artistic, literary, and scientific achievements, as well as "recognition of public service of the highest order." Unlike knights, holders of the Bharat Ratna...
have been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title.
Right to Freedom
The Right to Freedom is covered in Articles 19–22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include the freedom of speech and expression, freedom of assemblyFreedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
without arms, freedom of movement
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
throughout the territory of India,freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalise any trade, industry or service to the exclusion of the citizens.
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22. The scope of these articles, particularly with respect to the doctrine of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau
Benegal Narsing Rau
Sir Benegal Narsing Rau, CIE or B.N. Rau was an Indian bureaucrat, jurist, diplomat and statesman known for his key role in drafting the Constitution of India. He was also India's representative to the United Nations Security Council from 1950 to 1952. He was the brother of former Governor of...
, that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favour of "procedure established by law". As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002.
Article 20 provides protection from conviction for offences in certain respects, including the rights against ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
s, double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
and freedom from self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
. Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The Constitution also authorises the State to make laws providing for preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
, subject to certain other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed with skepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.
Right against Exploitation
Human trafficking
Human trafficking is the illegal trade of human beings for the purposes of reproductive slavery, commercial sexual exploitation, forced labor, or a modern-day form of slavery...
, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscription
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...
and community service
Community service
Community service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions....
. The Bonded Labour system (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers.
Right to Freedom of Religion
The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a secular StateSecular state
A secular state is a concept of secularism, whereby a state or country purports to be officially neutral in matters of religion, supporting neither religion nor irreligion. A secular state also claims to treat all its citizens equally regardless of religion, and claims to avoid preferential...
in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach, practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert
Proselytism
Proselytizing is the act of attempting to convert people to another opinion and, particularly, another religion. The word proselytize is derived ultimately from the Greek language prefix προσ- and the verb ἔρχομαι in the form of προσήλυτος...
another individual, since it would amount to an infringement of the other's right to freedom of conscience. Article 26 guarantees all religious denomination
Religious denomination
A religious denomination is a subgroup within a religion that operates under a common name, tradition, and identity.The term describes various Christian denominations...
s and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction
Religious education
In secular usage, religious education is the teaching of a particular religion and its varied aspects —its beliefs, doctrines, rituals, customs, rites, and personal roles...
in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent.
Cultural and Educational Rights
The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them. It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservationReservation in India
Reservation in India is a form of affirmative action designed to improve the well being of socially backward and underrepresented communities of citizens in India. There are laws in place, wherein a certain percentage of total available slots in Jobs and Education are set aside for people from...
of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.
Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority. The term "minority
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...
", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority. This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilisation of any aid granted by it.
Right to Constitutional Remedies
The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of IndiaSupreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
to seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, prohibition, certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
and quo warranto
Quo warranto
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
, for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
s even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation
Public interest litigation
In Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared.
Directive Principles of State Policy
The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the State to guide the establishment of an economic and social democracy, as proposed by the PreamblePreamble to the Constitution of India
The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document....
. They set forth the humanitarian and socialist instructions that were the aim of social revolution envisaged in India by the Constituent Assembly. The State is expected to keep these principles in mind while framing laws and policies, even though they are non-justiciable
Justiciability
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...
in nature. The Directive Principles may be classified under the following categories: ideals that the State ought to strive towards achieving; directions for the exercise of legislative and executive power; and rights of the citizens which the State must aim towards securing.
Despite being non-justiciable, the Directive Principles act as a check on the State; theorised as a yardstick in the hands of the electorate and the opposition to measure the performance of a government at the time of an election. Article 37, while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare state
Welfare state
A welfare state is a "concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those...
model of the Constitution and emphasise the positive duty of the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38.
Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal work
Equal pay for equal work
Equal pay for equal work is the concept that individuals doing the same work should receive the same remuneration. In America, for example, the law states that "employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility,...
for men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "subserve the common good".These clauses highlight the Constututional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution assisted by the State, and have been used to support the nationalisation of mineral resources as well as public utilities. Further, several legislations pertaining to agrarian reform
Agrarian reform
Agrarian reform can refer either, narrowly, to government-initiated or government-backed redistribution of agricultural land or, broadly, to an overall redirection of the agrarian system of the country, which often includes land reform measures. Agrarian reform can include credit measures,...
and land tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
have been enacted by the federal and state governments, in order to ensure equitable distribution of land resources.
Articles 41–43 mandate the State to endeavour to secure to all citizens the right to work
Right to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
, a living wage
Living wage
In public policy, a living wage is the minimum hourly income necessary for a worker to meet basic needs . These needs include shelter and other incidentals such as clothing and nutrition...
, social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
, maternity relief, and a decent standard of living
Standard of living
Standard of living is generally measured by standards such as real income per person and poverty rate. Other measures such as access and quality of health care, income growth inequality and educational standards are also used. Examples are access to certain goods , or measures of health such as...
. These provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi
Khadi
The term khādī or khaddar means cotton. khādī is Indian handspun and hand-woven cloth. The raw materials may be cotton, silk, or wool, which are spun into threads on a spinning wheel called a charkha. It is a versatile fabric, cool in the summer and warm in the winter...
, handlooms etc., in coordination with the state governments. Article 39A requires the State to provide free legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State to work towards securing the participation of workers in the management of industries. The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments, including two Constitutional amendments, have been passed to give effect to this provision.
Article 44 encourages the State to secure a uniform civil code
Uniform civil code
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed...
for all citizens, by eliminating discrepancies between various personal laws
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
currently in force in the country. However, this has remained a "dead letter" despite numerous reminders from the Supreme Court to implement the provision. Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years,but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six.Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicating drinks and drugs injurious to health.
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. These sections comprise a constitutional bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India
Constituent Assembly of India
The Constituent Assembly of India was elected to write the Constitution of India, and following independence served as the nation's first Parliament.-Nature of the Assembly:...
.
The Fundamental Rights
Fundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
are defined as the basic human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste
Caste
Caste is an elaborate and complex social system that combines elements of endogamy, occupation, culture, social class, tribal affiliation and political power. It should not be confused with race or social class, e.g. members of different castes in one society may belong to the same race, as in India...
, creed or gender. They are enforceable by the courts, subject to specific restrictions.
The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws.
The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not legally enforceable.
History
The Fundamental Rights and Directive Principles had their origins in the Indian independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Indian state. The development of constitutional rights in India was inspired by historical documents such as England's Bill of RightsBill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
, the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
and France's Declaration of the Rights of Man
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
.Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-23 The demand for civil liberties formed an important part of the Indian independence movement, with one of the objectives of the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
(INC) being to end discrimination between the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted by the INC between 1917 and 1919. The demands articulated in these resolutions included granting to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian members, political power, and equal terms for bearing arms as British citizens.
The experiences of the First World War
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
, the unsatisfactory Montague-Chelmsford reforms of 1919, and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding equality of status between Indians and the British to assuring liberty for all Indians. The Commonwealth of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental rights – individual liberty, freedom of conscience, free expression of opinion, freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, non-discrimination on the ground of sex, free elementary education and free use of public spaces. In 1927, the INC resolved to set up a committee to draft a "Swaraj Constitution" for India based on a declaration of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal Nehru
Motilal Nehru
Motilal Nehru was an early Indian independence activist and leader of the Indian National Congress, who remained Congress President twice, and...
, was constituted in 1928. Its report made a number of recommendations, including proposing guaranteed fundamental rights to all Indians. These rights resembled those of the American Constitution and those adopted by post-war European countries, and several of them were adopted from the 1925 Bill. Several of these provisions were later replicated in various parts of the Indian Constitution, including the Fundamental Rights and Directive Principles.
In 1931, the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
, at its Karachi
Karachi
Karachi is the largest city, main seaport and the main financial centre of Pakistan, as well as the capital of the province of Sindh. The city has an estimated population of 13 to 15 million, while the total metropolitan area has a population of over 18 million...
session, adopted a resolution committing itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to exploitation, providing social security and implementing land reforms. Other new rights proposed by the resolution were the prohibition of State titles, universal adult franchise
Universal suffrage
Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
, abolition of capital punishment and freedom of movement. Drafted by Jawaharlal Nehru
Jawaharlal Nehru
Jawaharlal Nehru , often referred to with the epithet of Panditji, was an Indian statesman who became the first Prime Minister of independent India and became noted for his “neutralist” policies in foreign affairs. He was also one of the principal leaders of India’s independence movement in the...
, the resolution, which later formed the basis for some of the Directive Principles, placed the primary responsibility of carrying out social reform on the State, and marked the increasing influence of socialism and Gandhian philosophy on the independence movement. The final phase of the Independence movement saw a reiteration of the socialist principles of the 1930s, along with an increased focus on minority rights – which had become an issue of major political concern by then – which were published in the Sapru Report in 1945. The report, apart from stressing on protecting the rights of minorities, also sought to prescribe a "standard of conduct for the legislatures, government and the courts".
During the final stages of the British Raj
British Raj
British Raj was the British rule in the Indian subcontinent between 1858 and 1947; The term can also refer to the period of dominion...
, the 1946 Cabinet Mission to India
1946 Cabinet Mission to India
The British Cabinet Mission of 1946 to India aimed to discuss and plan for the transfer of power from the British Raj to Indian leadership, providing India with independence under Dominion status in the Commonwealth of Nations...
proposed a Constituent Assembly to draft a Constitution for India as part of the process of transfer of power. The Constituent Assembly of India, composed of indirectly elected representatives from the British provinces and Princely state
Princely state
A Princely State was a nominally sovereign entitity of British rule in India that was not directly governed by the British, but rather by an Indian ruler under a form of indirect rule such as suzerainty or paramountcy.-British relationship with the Princely States:India under the British Raj ...
s, commenced its proceedings in December 1946, and completed drafting the Constitution of India by November 1949. According to the Cabinet Mission plan, the Assembly was to have an Advisory Committee to advise it on the nature and extent of fundamental rights, protection of minorities and administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947 with 64 members, and from among these a twelve-member sub-committee on Fundamental Rights was appointed under the chairmanship of J.B. Kripalani in February 1947. The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year, adopting the drafts of most of them by December 1948. The drafting of the Fundamental Rights was influenced by the adoption of the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
by the U.N. General Assembly and the activities of the United Nations Human Rights Commission, as well as decisions of the U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution. The Directive Principles, which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts of the Indian independence movement, and were inspired by similar principles contained in the Irish Constitution. The Fundamental Duties were later added to the Constitution by the 42nd Amendment
Forty-second amendment of the Indian Constitution
The Forty-second Amendment of the Constitution of India, enacted in 1976, attempted to reduce the power of the Indian Supreme Court and High Courts to pronounce upon the constitutional validity of laws...
in 1976.
Fundamental Rights
The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society. Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. They act as limitations on the powers of the legislature and executive, under Article 13, and in case of any violation of these rights the Supreme Court of India
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
and the High Courts of the states
High Courts of India
India's unitary judicial system is made up of the Supreme Court of India at the national level, for the entire country and the 21 High Courts at the State level. These courts have jurisdiction over a state, a union territory or a group of states and union territories...
have the power to declare such legislative or executive action as unconstitutional and void. These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India
Indian nationality law
The Indian citizenship and nationality law and the Constitution of India provides single citizenship for the entire country. The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India...
.Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-25
The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. In the Kesavananda Bharati v. State of Kerala case in 1973, the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure
Basic structure
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...
of the Constitution. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment
Amendment of the Constitution of India
Amendment of the Constitution of India is the process of making changes to the nation's fundamental law. Changes to the Indian constitution are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India, and certain amendments must also be...
, passed by a two-thirds majority of each House of Parliament
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
. The imposition of a state of emergency
State of Emergency in India
A state of emergency in India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when he perceives grave threats to the nation from internal and external sources or from financial situations of crisis...
may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces
Indian Armed Forces
The Indian Armed Forces are the military forces of the Republic of India. They consist of the Army, Navy and Air Force, supported by three paramilitary forces and various inter-service institutions such as the Strategic Forces Command.The President of India is...
and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.
Right to Equality
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–16, which collectively encompass the general principles of equality before law and non-discrimination, and Articles 17–18 which collectively further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection
Reservation in India
Reservation in India is a form of affirmative action designed to improve the well being of socially backward and underrepresented communities of citizens in India. There are laws in place, wherein a certain percentage of total available slots in Jobs and Education are set aside for people from...
. Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion.
The practice of untouchability
Dalit
Dalit is a designation for a group of people traditionally regarded as Untouchable. Dalits are a mixed population, consisting of numerous castes from all over South Asia; they speak a variety of languages and practice a multitude of religions...
has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and titles of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna
Bharat Ratna
Bharat Ratna is the Republic of India's highest civilian award, awarded for the highest degrees of national service. This service includes artistic, literary, and scientific achievements, as well as "recognition of public service of the highest order." Unlike knights, holders of the Bharat Ratna...
have been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title.
Right to Freedom
The Right to Freedom is covered in Articles 19–22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include the freedom of speech and expression, freedom of assemblyFreedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
without arms, freedom of movement
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
throughout the territory of India,freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalise any trade, industry or service to the exclusion of the citizens.
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22. The scope of these articles, particularly with respect to the doctrine of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau
Benegal Narsing Rau
Sir Benegal Narsing Rau, CIE or B.N. Rau was an Indian bureaucrat, jurist, diplomat and statesman known for his key role in drafting the Constitution of India. He was also India's representative to the United Nations Security Council from 1950 to 1952. He was the brother of former Governor of...
, that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favour of "procedure established by law". As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002.
Article 20 provides protection from conviction for offences in certain respects, including the rights against ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
s, double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
and freedom from self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
. Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The Constitution also authorises the State to make laws providing for preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
, subject to certain other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed with skepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.
Right against Exploitation
Human trafficking
Human trafficking is the illegal trade of human beings for the purposes of reproductive slavery, commercial sexual exploitation, forced labor, or a modern-day form of slavery...
, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscription
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...
and community service
Community service
Community service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions....
. The Bonded Labour system (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers.
Right to Freedom of Religion
The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a secular StateSecular state
A secular state is a concept of secularism, whereby a state or country purports to be officially neutral in matters of religion, supporting neither religion nor irreligion. A secular state also claims to treat all its citizens equally regardless of religion, and claims to avoid preferential...
in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach, practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert
Proselytism
Proselytizing is the act of attempting to convert people to another opinion and, particularly, another religion. The word proselytize is derived ultimately from the Greek language prefix προσ- and the verb ἔρχομαι in the form of προσήλυτος...
another individual, since it would amount to an infringement of the other's right to freedom of conscience. Article 26 guarantees all religious denomination
Religious denomination
A religious denomination is a subgroup within a religion that operates under a common name, tradition, and identity.The term describes various Christian denominations...
s and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction
Religious education
In secular usage, religious education is the teaching of a particular religion and its varied aspects —its beliefs, doctrines, rituals, customs, rites, and personal roles...
in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent.
Cultural and Educational Rights
The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them. It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservationReservation in India
Reservation in India is a form of affirmative action designed to improve the well being of socially backward and underrepresented communities of citizens in India. There are laws in place, wherein a certain percentage of total available slots in Jobs and Education are set aside for people from...
of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.
Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority. The term "minority
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...
", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority. This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilisation of any aid granted by it.
Right to Constitutional Remedies
The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of IndiaSupreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
to seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, prohibition, certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
and quo warranto
Quo warranto
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
, for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
s even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation
Public interest litigation
In Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared.
Directive Principles of State Policy
The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the State to guide the establishment of an economic and social democracy, as proposed by the PreamblePreamble to the Constitution of India
The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document....
. They set forth the humanitarian and socialist instructions that were the aim of social revolution envisaged in India by the Constituent Assembly. The State is expected to keep these principles in mind while framing laws and policies, even though they are non-justiciable
Justiciability
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...
in nature. The Directive Principles may be classified under the following categories: ideals that the State ought to strive towards achieving; directions for the exercise of legislative and executive power; and rights of the citizens which the State must aim towards securing.
Despite being non-justiciable, the Directive Principles act as a check on the State; theorised as a yardstick in the hands of the electorate and the opposition to measure the performance of a government at the time of an election. Article 37, while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare state
Welfare state
A welfare state is a "concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those...
model of the Constitution and emphasise the positive duty of the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38.
Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal work
Equal pay for equal work
Equal pay for equal work is the concept that individuals doing the same work should receive the same remuneration. In America, for example, the law states that "employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility,...
for men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "subserve the common good".These clauses highlight the Constututional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution assisted by the State, and have been used to support the nationalisation of mineral resources as well as public utilities. Further, several legislations pertaining to agrarian reform
Agrarian reform
Agrarian reform can refer either, narrowly, to government-initiated or government-backed redistribution of agricultural land or, broadly, to an overall redirection of the agrarian system of the country, which often includes land reform measures. Agrarian reform can include credit measures,...
and land tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
have been enacted by the federal and state governments, in order to ensure equitable distribution of land resources.
Articles 41–43 mandate the State to endeavour to secure to all citizens the right to work
Right to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
, a living wage
Living wage
In public policy, a living wage is the minimum hourly income necessary for a worker to meet basic needs . These needs include shelter and other incidentals such as clothing and nutrition...
, social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
, maternity relief, and a decent standard of living
Standard of living
Standard of living is generally measured by standards such as real income per person and poverty rate. Other measures such as access and quality of health care, income growth inequality and educational standards are also used. Examples are access to certain goods , or measures of health such as...
. These provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi
Khadi
The term khādī or khaddar means cotton. khādī is Indian handspun and hand-woven cloth. The raw materials may be cotton, silk, or wool, which are spun into threads on a spinning wheel called a charkha. It is a versatile fabric, cool in the summer and warm in the winter...
, handlooms etc., in coordination with the state governments. Article 39A requires the State to provide free legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State to work towards securing the participation of workers in the management of industries. The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments, including two Constitutional amendments, have been passed to give effect to this provision.
Article 44 encourages the State to secure a uniform civil code
Uniform civil code
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed...
for all citizens, by eliminating discrepancies between various personal laws
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
currently in force in the country. However, this has remained a "dead letter" despite numerous reminders from the Supreme Court to implement the provision. Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years,but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six.Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicating drinks and drugs injurious to health.
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. These sections comprise a constitutional bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India
Constituent Assembly of India
The Constituent Assembly of India was elected to write the Constitution of India, and following independence served as the nation's first Parliament.-Nature of the Assembly:...
.
The Fundamental Rights
Fundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
are defined as the basic human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste
Caste
Caste is an elaborate and complex social system that combines elements of endogamy, occupation, culture, social class, tribal affiliation and political power. It should not be confused with race or social class, e.g. members of different castes in one society may belong to the same race, as in India...
, creed or gender. They are enforceable by the courts, subject to specific restrictions.
The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws.
The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not legally enforceable.
History
The Fundamental Rights and Directive Principles had their origins in the Indian independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Indian state. The development of constitutional rights in India was inspired by historical documents such as England's Bill of RightsBill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
, the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
and France's Declaration of the Rights of Man
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
.Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-23 The demand for civil liberties formed an important part of the Indian independence movement, with one of the objectives of the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
(INC) being to end discrimination between the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted by the INC between 1917 and 1919. The demands articulated in these resolutions included granting to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian members, political power, and equal terms for bearing arms as British citizens.
The experiences of the First World War
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
, the unsatisfactory Montague-Chelmsford reforms of 1919, and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding equality of status between Indians and the British to assuring liberty for all Indians. The Commonwealth of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental rights – individual liberty, freedom of conscience, free expression of opinion, freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, non-discrimination on the ground of sex, free elementary education and free use of public spaces. In 1927, the INC resolved to set up a committee to draft a "Swaraj Constitution" for India based on a declaration of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal Nehru
Motilal Nehru
Motilal Nehru was an early Indian independence activist and leader of the Indian National Congress, who remained Congress President twice, and...
, was constituted in 1928. Its report made a number of recommendations, including proposing guaranteed fundamental rights to all Indians. These rights resembled those of the American Constitution and those adopted by post-war European countries, and several of them were adopted from the 1925 Bill. Several of these provisions were later replicated in various parts of the Indian Constitution, including the Fundamental Rights and Directive Principles.
In 1931, the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
, at its Karachi
Karachi
Karachi is the largest city, main seaport and the main financial centre of Pakistan, as well as the capital of the province of Sindh. The city has an estimated population of 13 to 15 million, while the total metropolitan area has a population of over 18 million...
session, adopted a resolution committing itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to exploitation, providing social security and implementing land reforms. Other new rights proposed by the resolution were the prohibition of State titles, universal adult franchise
Universal suffrage
Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
, abolition of capital punishment and freedom of movement. Drafted by Jawaharlal Nehru
Jawaharlal Nehru
Jawaharlal Nehru , often referred to with the epithet of Panditji, was an Indian statesman who became the first Prime Minister of independent India and became noted for his “neutralist” policies in foreign affairs. He was also one of the principal leaders of India’s independence movement in the...
, the resolution, which later formed the basis for some of the Directive Principles, placed the primary responsibility of carrying out social reform on the State, and marked the increasing influence of socialism and Gandhian philosophy on the independence movement. The final phase of the Independence movement saw a reiteration of the socialist principles of the 1930s, along with an increased focus on minority rights – which had become an issue of major political concern by then – which were published in the Sapru Report in 1945. The report, apart from stressing on protecting the rights of minorities, also sought to prescribe a "standard of conduct for the legislatures, government and the courts".
During the final stages of the British Raj
British Raj
British Raj was the British rule in the Indian subcontinent between 1858 and 1947; The term can also refer to the period of dominion...
, the 1946 Cabinet Mission to India
1946 Cabinet Mission to India
The British Cabinet Mission of 1946 to India aimed to discuss and plan for the transfer of power from the British Raj to Indian leadership, providing India with independence under Dominion status in the Commonwealth of Nations...
proposed a Constituent Assembly to draft a Constitution for India as part of the process of transfer of power. The Constituent Assembly of India, composed of indirectly elected representatives from the British provinces and Princely state
Princely state
A Princely State was a nominally sovereign entitity of British rule in India that was not directly governed by the British, but rather by an Indian ruler under a form of indirect rule such as suzerainty or paramountcy.-British relationship with the Princely States:India under the British Raj ...
s, commenced its proceedings in December 1946, and completed drafting the Constitution of India by November 1949. According to the Cabinet Mission plan, the Assembly was to have an Advisory Committee to advise it on the nature and extent of fundamental rights, protection of minorities and administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947 with 64 members, and from among these a twelve-member sub-committee on Fundamental Rights was appointed under the chairmanship of J.B. Kripalani in February 1947. The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year, adopting the drafts of most of them by December 1948. The drafting of the Fundamental Rights was influenced by the adoption of the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
by the U.N. General Assembly and the activities of the United Nations Human Rights Commission, as well as decisions of the U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution. The Directive Principles, which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts of the Indian independence movement, and were inspired by similar principles contained in the Irish Constitution. The Fundamental Duties were later added to the Constitution by the 42nd Amendment
Forty-second amendment of the Indian Constitution
The Forty-second Amendment of the Constitution of India, enacted in 1976, attempted to reduce the power of the Indian Supreme Court and High Courts to pronounce upon the constitutional validity of laws...
in 1976.
Fundamental Rights
The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society. Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. They act as limitations on the powers of the legislature and executive, under Article 13, and in case of any violation of these rights the Supreme Court of India
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
and the High Courts of the states
High Courts of India
India's unitary judicial system is made up of the Supreme Court of India at the national level, for the entire country and the 21 High Courts at the State level. These courts have jurisdiction over a state, a union territory or a group of states and union territories...
have the power to declare such legislative or executive action as unconstitutional and void. These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India
Indian nationality law
The Indian citizenship and nationality law and the Constitution of India provides single citizenship for the entire country. The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India...
.Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-25
The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. In the Kesavananda Bharati v. State of Kerala case in 1973, the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure
Basic structure
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...
of the Constitution. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment
Amendment of the Constitution of India
Amendment of the Constitution of India is the process of making changes to the nation's fundamental law. Changes to the Indian constitution are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India, and certain amendments must also be...
, passed by a two-thirds majority of each House of Parliament
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
. The imposition of a state of emergency
State of Emergency in India
A state of emergency in India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when he perceives grave threats to the nation from internal and external sources or from financial situations of crisis...
may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces
Indian Armed Forces
The Indian Armed Forces are the military forces of the Republic of India. They consist of the Army, Navy and Air Force, supported by three paramilitary forces and various inter-service institutions such as the Strategic Forces Command.The President of India is...
and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.
Right to Equality
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–16, which collectively encompass the general principles of equality before law and non-discrimination, and Articles 17–18 which collectively further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection
Reservation in India
Reservation in India is a form of affirmative action designed to improve the well being of socially backward and underrepresented communities of citizens in India. There are laws in place, wherein a certain percentage of total available slots in Jobs and Education are set aside for people from...
. Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion.
The practice of untouchability
Dalit
Dalit is a designation for a group of people traditionally regarded as Untouchable. Dalits are a mixed population, consisting of numerous castes from all over South Asia; they speak a variety of languages and practice a multitude of religions...
has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and titles of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna
Bharat Ratna
Bharat Ratna is the Republic of India's highest civilian award, awarded for the highest degrees of national service. This service includes artistic, literary, and scientific achievements, as well as "recognition of public service of the highest order." Unlike knights, holders of the Bharat Ratna...
have been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title.
Right to Freedom
The Right to Freedom is covered in Articles 19–22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include the freedom of speech and expression, freedom of assemblyFreedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
without arms, freedom of movement
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
throughout the territory of India,freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalise any trade, industry or service to the exclusion of the citizens.
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22. The scope of these articles, particularly with respect to the doctrine of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau
Benegal Narsing Rau
Sir Benegal Narsing Rau, CIE or B.N. Rau was an Indian bureaucrat, jurist, diplomat and statesman known for his key role in drafting the Constitution of India. He was also India's representative to the United Nations Security Council from 1950 to 1952. He was the brother of former Governor of...
, that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favour of "procedure established by law". As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002.
Article 20 provides protection from conviction for offences in certain respects, including the rights against ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
s, double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
and freedom from self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
. Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The Constitution also authorises the State to make laws providing for preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
, subject to certain other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed with skepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.
Right against Exploitation
Human trafficking
Human trafficking is the illegal trade of human beings for the purposes of reproductive slavery, commercial sexual exploitation, forced labor, or a modern-day form of slavery...
, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscription
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...
and community service
Community service
Community service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions....
. The Bonded Labour system (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers.
Right to Freedom of Religion
The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a secular StateSecular state
A secular state is a concept of secularism, whereby a state or country purports to be officially neutral in matters of religion, supporting neither religion nor irreligion. A secular state also claims to treat all its citizens equally regardless of religion, and claims to avoid preferential...
in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach, practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert
Proselytism
Proselytizing is the act of attempting to convert people to another opinion and, particularly, another religion. The word proselytize is derived ultimately from the Greek language prefix προσ- and the verb ἔρχομαι in the form of προσήλυτος...
another individual, since it would amount to an infringement of the other's right to freedom of conscience. Article 26 guarantees all religious denomination
Religious denomination
A religious denomination is a subgroup within a religion that operates under a common name, tradition, and identity.The term describes various Christian denominations...
s and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction
Religious education
In secular usage, religious education is the teaching of a particular religion and its varied aspects —its beliefs, doctrines, rituals, customs, rites, and personal roles...
in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent.
Cultural and Educational Rights
The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them. It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservationReservation in India
Reservation in India is a form of affirmative action designed to improve the well being of socially backward and underrepresented communities of citizens in India. There are laws in place, wherein a certain percentage of total available slots in Jobs and Education are set aside for people from...
of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.
Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority. The term "minority
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...
", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority. This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilisation of any aid granted by it.
Right to Constitutional Remedies
The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of IndiaSupreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
to seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, prohibition, certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
and quo warranto
Quo warranto
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
, for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
s even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation
Public interest litigation
In Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared.
Directive Principles of State Policy
The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the State to guide the establishment of an economic and social democracy, as proposed by the PreamblePreamble to the Constitution of India
The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document....
. They set forth the humanitarian and socialist instructions that were the aim of social revolution envisaged in India by the Constituent Assembly. The State is expected to keep these principles in mind while framing laws and policies, even though they are non-justiciable
Justiciability
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...
in nature. The Directive Principles may be classified under the following categories: ideals that the State ought to strive towards achieving; directions for the exercise of legislative and executive power; and rights of the citizens which the State must aim towards securing.
Despite being non-justiciable, the Directive Principles act as a check on the State; theorised as a yardstick in the hands of the electorate and the opposition to measure the performance of a government at the time of an election. Article 37, while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare state
Welfare state
A welfare state is a "concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those...
model of the Constitution and emphasise the positive duty of the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38.
Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal work
Equal pay for equal work
Equal pay for equal work is the concept that individuals doing the same work should receive the same remuneration. In America, for example, the law states that "employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility,...
for men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "subserve the common good".These clauses highlight the Constututional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution assisted by the State, and have been used to support the nationalisation of mineral resources as well as public utilities. Further, several legislations pertaining to agrarian reform
Agrarian reform
Agrarian reform can refer either, narrowly, to government-initiated or government-backed redistribution of agricultural land or, broadly, to an overall redirection of the agrarian system of the country, which often includes land reform measures. Agrarian reform can include credit measures,...
and land tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
have been enacted by the federal and state governments, in order to ensure equitable distribution of land resources.
Articles 41–43 mandate the State to endeavour to secure to all citizens the right to work
Right to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
, a living wage
Living wage
In public policy, a living wage is the minimum hourly income necessary for a worker to meet basic needs . These needs include shelter and other incidentals such as clothing and nutrition...
, social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
, maternity relief, and a decent standard of living
Standard of living
Standard of living is generally measured by standards such as real income per person and poverty rate. Other measures such as access and quality of health care, income growth inequality and educational standards are also used. Examples are access to certain goods , or measures of health such as...
. These provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi
Khadi
The term khādī or khaddar means cotton. khādī is Indian handspun and hand-woven cloth. The raw materials may be cotton, silk, or wool, which are spun into threads on a spinning wheel called a charkha. It is a versatile fabric, cool in the summer and warm in the winter...
, handlooms etc., in coordination with the state governments. Article 39A requires the State to provide free legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State to work towards securing the participation of workers in the management of industries. The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments, including two Constitutional amendments, have been passed to give effect to this provision.
Article 44 encourages the State to secure a uniform civil code
Uniform civil code
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed...
for all citizens, by eliminating discrepancies between various personal laws
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
currently in force in the country. However, this has remained a "dead letter" despite numerous reminders from the Supreme Court to implement the provision. Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years,but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six.Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicating drinks and drugs injurious to health. As a consequence, partial or total prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...
has been introduced in several states, but financial constraints have prevented its full-fledged application. The State is also mandated by Article 48 to organise agriculture and animal husbandry
Animal husbandry
Animal husbandry is the agricultural practice of breeding and raising livestock.- History :Animal husbandry has been practiced for thousands of years, since the first domestication of animals....
on modern and scientific lines by improving breeds and prohibiting slaughter of cattle.Article 48A mandates the State to protect the environment
Environmental protection
Environmental protection is a practice of protecting the environment, on individual, organizational or governmental level, for the benefit of the natural environment and humans. Due to the pressures of population and our technology the biophysical environment is being degraded, sometimes permanently...
and safeguard the forests and wildlife of the country, while Article 49 places an obligation upon the State to ensure the preservation of monuments and objects of national importance. Article 50 requires the State to ensure the separation of judiciary from executive in public services, in order to ensure judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
, and federal legislation has been enacted to achieve this objective. The State, according to Article 51, must also strive for the promotion of international peace and security, and Parliament has been empowered under Article 253 to make laws giving effect to international treaties
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
Fundamental Duties
History of India
The history of India begins with evidence of human activity of Homo sapiens as long as 75,000 years ago, or with earlier hominids including Homo erectus from about 500,000 years ago. The Indus Valley Civilization, which spread and flourished in the northwestern part of the Indian subcontinent from...
, preserve its composite culture
Culture of India
India's languages, religions, dance, music, architecture, food and customs differ from place to place within the country, but nevertheless possess a commonality....
and assist in its defense
Indian Armed Forces
The Indian Armed Forces are the military forces of the Republic of India. They consist of the Army, Navy and Air Force, supported by three paramilitary forces and various inter-service institutions such as the Strategic Forces Command.The President of India is...
. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper
Scientific temper
Scientific temper describes an attitude which involves the application of logic and the avoidance of bias and preconceived notions. Discussion, argument and analysis are vital parts of scientific temper. It is thus necessarily open — admitting every point of view, however heterodox it might be, or...
, abjure violence, and strive towards excellence in all spheres of life. Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justifiable, without any legal sanction in case of their violation or non-compliance., Indian History, World Developments and Civics, p. There is reference to such duties in international instruments such as the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
and International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, and Article 51A brings the Indian Constitution into conformity with these treaties.
Criticism and analysis
Fewer children are now employed in hazardous environments, but their employment in non-hazardous jobs, prevalently as domestic help, violates the spirit of the constitution in the eyes of many critics and human rights advocates. More than 16.5 million children are in employment. India was ranked 88 out of 159 countries in 2005, according to the degree to which corruption
Political corruption
Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
is perceived to exist among public officials and politicians.Index of perception of corruption, published by Transparency International
Transparency International
Transparency International is a non-governmental organization that monitors and publicizes corporate and political corruption in international development. It publishes an annual Corruption Perceptions Index, a comparative listing of corruption worldwide...
.
The year 1990–1991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar. The government provides free textbooks to students belonging to scheduled castes and tribes pursuing medicine and engineering courses. During 2002–2003, a sum of Rs.
Rupee
The rupee is the common name for the monetary unit of account in India, Sri Lanka, Nepal, Pakistan, Mauritius, Seychelles, Maldives, and formerly in Burma, and Afghanistan. Historically, the first currency called "rupee" was introduced in the 16th century...
4.77 crore (47.7 million) was released for this purpose. In order to protect scheduled castes and tribes from discrimination, the government enacted the Prevention of Atrocities Act in 1995, prescribing severe punishments for such actions.
The Minimum Wages Act
Minimum wage
A minimum wage is the lowest hourly, daily or monthly remuneration that employers may legally pay to workers. Equivalently, it is the lowest wage at which workers may sell their labour. Although minimum wage laws are in effect in a great many jurisdictions, there are differences of opinion about...
of 1948 empowers government to fix minimum wages for people working across the economic spectrum. The Consumer Protection Act of 1986 provides for the better protection of consumers. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, award relief and compensation wherever appropriate to the consumer. The Equal Remuneration Act of 1976 provides for equal pay for equal work for both men and women. The Sampoorna Grameen Rozgar Yojana
Sampoorna Grameen Rozgar Yojana
The Sampoorna Grameen Rozgar Yojana was a scheme launched by the Government of India to attain the objective of providing gainful employment for the rural poor. From 1 April 1999, EAS became an allocation-based scheme...
(Universal Rural Employment Programme) was launched in 2001 to attain the objective of providing gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions.
A system of elected village councils, known as Panchayati Raj covers almost all states and territories of India
States and territories of India
India is a federal union of states comprising twenty-eight states and seven union territories. The states and territories are further subdivided into districts and so on.-List of states and territories:...
. One-third of the total number of seats have been reserved for women in Panchayats at every level; and in the case of Bihar
Bihar
Bihar is a state in eastern India. It is the 12th largest state in terms of geographical size at and 3rd largest by population. Almost 58% of Biharis are below the age of 25, which is the highest proportion in India....
, half the seats have been reserved for women.73rd Amendment Act, 1992 The judiciary has been separated from the executive "in all the states and territories except Jammu and Kashmir
Jammu and Kashmir
Jammu and Kashmir is the northernmost state of India. It is situated mostly in the Himalayan mountains. Jammu and Kashmir shares a border with the states of Himachal Pradesh and Punjab to the south and internationally with the People's Republic of China to the north and east and the...
and Nagaland
Nagaland
Nagaland is a state in the far north-eastern part of India. It borders the state of Assam to the west, Arunachal Pradesh and part of Assam to the north, Burma to the east and Manipur to the south. The state capital is Kohima, and the largest city is Dimapur...
." India's foreign policy has been influenced by the Directive Principles. India supported the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
in peace-keeping activities, with the Indian Army
Indian Army
The Indian Army is the land based branch and the largest component of the Indian Armed Forces. With about 1,100,000 soldiers in active service and about 1,150,000 reserve troops, the Indian Army is the world's largest standing volunteer army...
having participated in 37 UN peace-keeping operations.
The implementation of a uniform civil code
Uniform civil code
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed...
for all citizens has not been achieved owing to widespread opposition from various religious groups and political parties. The Shah Bano case
Shah Bano case
The Shah Bano case was a controversial divorce lawsuit in India, in which Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978 and was subsequently denied alimony...
(1985–86) provoked a political firestorm in India when the Supreme Court ruled that Shah Bano, a Muslim woman who had been divorced by her husband in 1978 was entitled to receive alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
from her former husband under Indian law applicable for all Indian women. This decision evoked outrage in the Muslim community, which sought the application of the Muslim personal law
All India Muslim Personal Law Board
The All India Muslim Personal Law Board is an organization constituted in 1973 to adopt suitable strategies for the protection and continued applicability of Muslim Personal Law in India, most importantly, the The Muslim Personal Law Application Act of 1937, providing for the application of the...
and in response the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 overturning the Supreme Court's verdict. This act provoked further outrage, as jurists, critics and politicians alleged that the fundamental right of equality for all citizens irrespective of religion or gender was being jettisoned to preserve the interests of distinct religious communities. The verdict and the legislation remain a source of heated debate, with many citing the issue as a prime example of the poor implementation of Fundamental Rights.
Relationship between the Fundamental Rights, Directive Principles and Fundamental Duties
The Directive Principles have been used to uphold the Constitutional validity of legislations in case of a conflict with the Fundamental Rights. Article 31C, added by the 25th Amendment in 1971, provided that any law made to give effect to the Directive Principles in Article 39(b)–(c) would not be invalid on the grounds that they derogated from the Fundamental Rights conferred by Articles 14, 19 and 31. The application of this article was sought to be extended to all the Directive Principles by the 42nd Amendment in 1976, but the Supreme Court struck down the extension as void on the ground that it violated the basic structure of the Constitution. The Fundamental Rights and Directive Principles have also been used together in forming the basis of legislation for social welfare. The Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state by means of social revolution. Similarly, the Supreme Court has used the Fundamental Duties to uphold the Constitutional validity of statutes which seeks to promote the objects laid out in the Fundamental Duties. These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law. The Supreme Court has also issued directions to the State in this regard, with a view towards making the provisions effective and enabling a citizens to properly perform their duties.
See also
- Fundamental Rights in IndiaFundamental Rights in India'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
- Writs in Indian law
- Human rights in IndiaHuman rights in IndiaThe situation of human rights in India is a complex one, as a result of the country's large size and tremendous diversity, its status as a developing country and a sovereign, secular, democratic republic, and its history as a former colonial territory. The Constitution of India provides for...
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
Further readingFundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
Human rights in India
The situation of human rights in India is a complex one, as a result of the country's large size and tremendous diversity, its status as a developing country and a sovereign, secular, democratic republic, and its history as a former colonial territory. The Constitution of India provides for...
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
Rule according to higher law
The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
Date of ruling 15 December 1995
- Maneka GandhiManeka GandhiManeka Gandhi is an Indian politician, animal rights activist, environmentalist, former model and widow of the Indian politician, Sanjay Gandhi. She has been a minister in four governments, and has authored a number of books in the areas of etymology, law and animal welfare...
v. Union of India; AIR 1978 S.C. 597, (1978).
- Article 29 of Universal Declaration of Human Rights and International Covenant on Civil and Political RightsUniversal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
.
External links
Maneka Gandhi
Maneka Gandhi is an Indian politician, animal rights activist, environmentalist, former model and widow of the Indian politician, Sanjay Gandhi. She has been a minister in four governments, and has authored a number of books in the areas of etymology, law and animal welfare...
v. Union of India; AIR 1978 S.C. 597, (1978).
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
.