Fundamental Rights of Indian citizens

The Fundamental Rights embodied in the Indian constitution are guaranteed to all Indian

citizens. These civil liberties take precedence over any other law of the land. They

include individual rights common to most liberal democracies, such as equality before the

law, freedom of speech and expression, freedom of association and peaceful assembly,

freedom of religion, and the right to constitutional remedies for the protection of civil

rights such as habeas corpus.

In addition, the Fundamental Rights for Indians are aimed at overturning the inequities of

past social practices. They abolish "untouchability"; prohibit discrimination on the

grounds of religion, race, caste, sex, or place of birth; and forbid traffic in human beings

and forced labor. They go beyond conventional civil liberties in protecting cultural and

educational rights of minorities by ensuring that minorities may preserve their distinctive

languages and establish and administer their own education institutions.

Originally, the right to property was also included in the Fundamental Rights; however,

the Forty-fourth Amendment, passed in 1978, revised the status of property rights by

stating that "No person shall be deprived of his property save by authority of law."

Freedom of speech and expression, generally interpreted to include freedom of the press,

can be limited "in the interests of the sovereignty and integrity of India, the security of

the State, friendly relations with foreign States, public order, decency or morality, or in

relation to contempt of court, defamation or incitement to an offence" (see The Media,

this ch.).

Directive Principles of State Policy INDIA

An important feature of the constitution is the Directive Principles of State Policy.

Although the Directive Principles are asserted to be "fundamental in the governance of

the country," they are not legally enforceable. Instead, they are guidelines for creating a

social order characterized by social, economic, and political justice, liberty, equality, and

fraternity as enunciated in the constitution's preamble.

The Forty-second Amendment, which came into force in January 1977, attempted to raise

the status of the Directive Principles by stating that no law implementing any of the

Directive Principles could be declared unconstitutional on the grounds that it violated any

of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting

"antinational activities" or the formation of "antinational associations" could not be

invalidated because they infringed on any of the Fundamental Rights. It added a new

section to the constitution on "Fundamental Duties" that enjoined citizens "to promote

harmony and the spirit of common brotherhood among all the people of India,

transcending religious, linguistic and regional or sectional diversities." However, the

amendment reflected a new emphasis in governing circles on order and discipline to

counteract what some leaders had come to perceive as the excessively freewheeling style

of Indian democracy. After the March 1977 general election ended the control of the

Congress (Congress (R) from 1969) over the executive and legislature for the first time

since independence in 1947, the new Janata-dominated Parliament passed the Forty-third

Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the

Forty-second Amendment's provision that Directive Principles take precedence over

Fundamental Rights and also curbed Parliament's power to legislate against "antinational

activities" .

India

Group Rights

In addition to stressing the right of individuals as citizens, Part XVI of the constitution

endeavors to promote social justice by elaborating a series of affirmative-action measures

for disadvantaged groups. These "Special Provisions Relating to Certain Classes" include

the reservation of seats in the Lok Sabha (House of the People) and in state legislative

bodies for members of Scheduled Castes and Scheduled Tribes. The number of seats set

aside for them is proportional to their share of the national and respective state

populations. Part XVI also reserves some government appointments for these

disadvantaged groups insofar as they do not interfere with administrative efficiency. The

section stipulates that a special officer for Scheduled Castes and Scheduled Tribes be

appointed by the president to "investigate all matters relating to the safeguards provided"

for them, as well as periodic commissions to investigate the conditions of the Backward

Classes. The president, in consultation with state governors, designates those groups that

meet the criteria of Scheduled Castes and Scheduled Tribes. Similar protections exist for

the small Anglo-Indian community.

The framers of the constitution provided that the special provisions would cease twenty

years after the promulgation of the constitution, anticipating that the progress of the

disadvantaged groups during that time would have removed significant disparities

between them and other groups in society. However, in 1969 the Twenty-third

Amendment extended the affirmative-action measures until 1980. The Forty-fifth

Amendment of 1980 extended them again until 1990, and in 1989 the Sixty-second

Amendment extended the provisions until 2000. The Seventy-seventh Amendment of

1995 further strengthened the states' authority to reserve government-service positions for

Scheduled Caste and Scheduled Tribe members.

Emergency Provisions and Authoritarian Powers

Part XVIII of the constitution permits the state to suspend various civil liberties and the

application of certain federal principles during presidentially proclaimed states of

emergency. The constitution provides for three categories of emergencies: a threat by

"war or external aggression" or by "internal disturbances"; a "failure of constitutional

machinery" in the country or in a state; and a threat to the financial security or credit of

the nation or a part of it. Under the first two categories, the Fundamental Rights, with the

exception of protection of life and personal liberty, may be suspended, and federal

principles may be rendered inoperative. A proclamation of a state of emergency lapses

after two months if not approved by both houses of Parliament. The president can issue a

proclamation dissolving a state government if it can be determined, upon receipt of a

report from a governor, that circumstances prevent the government of that state from

maintaining law and order according to the constitution. This action establishes what is

known as President's Rule because under such a proclamation the president can assume

any or all functions of the state government; transfer the powers of the state legislature to

Parliament; or take other measures necessary to achieve the objectives of the

proclamation, including suspension, in whole or in part, of the constitution. A

proclamation of President's Rule cannot interfere with the exercise of authority by the

state's high court. Once approved, President's Rule normally lasts for six months, but it

may be extended up to one year if Parliament approves. In exceptional cases, such as the

violent revolt in Jammu and Kashmir during the early and mid-1990s, President's Rule

has lasted for a period of more than five years.

President's Rule has been imposed frequently, and its use is often politically motivated.

During the terms of prime ministers Nehru and Lal Bahadur Shastri, from 1947 to 1966,

it was imposed ten times. Under Indira Gandhi's two tenures as prime minister (1966-77

and 1980-84), President's Rule was imposed forty-one times. Despite Mrs. Gandhi's

frequent use of President's Rule, she was in office longer (187 months) than any other

prime minister except Nehru (201 months). Other prime ministers also have been

frequent users: Morarji Desai (eleven times in twenty-eight months), Chaudhury Charan

Singh (five times in less than six months), Rajiv Gandhi (eight times in sixty-one

months), Vishwanath Pratap (V.P.) Singh (two times in eleven months), Chandra Shekhar

(four times in seven months), and P.V. Narasimha Rao (nine times in his first forty-two

months in office).

State of emergency proclamations have been issued three times since independence. The

first was in 1962 during the border war with China. Another was declared in 1971 when

India went to war against Pakistan over the independence of East Pakistan, which became

Bangladesh. In 1975 the third Emergency was imposed in response to an alledged threat

by "internal disturbances" stemming from the political opposition to Indira Gandhi (see

The Rise of Indira Gandhi, ch. 1; National-Level Agencies, ch. 10).

The Indian state has authoritarian powers in addition to the constitution's provisions for

proclamations of Emergency Rule and President's Rule. The Preventive Detention Act

was passed in 1950 and remained in force until 1970. Shortly after the start of the

Emergency in 1962, the government enacted the Defence of India Act. This legislation

created the Defence of India Rules, which allow for preventive detention of individuals

who have acted or who are likely to act in a manner detrimental to public order and

national security. The Defence of India Rules were reimposed during the 1971 war with

Pakistan; they remained in effect after the end of the war and were invoked for a variety

of uses not intended by their framers, such as the arrests made during a nationwide

railroad strike in 1974.

The Sikh militant movement that spread through Punjab during the 1980s spurred

additional authoritarian legislation (see Insurgent Movements and External Subversion,

ch. 10). In 1984 Parliament passed the National Security Amendment Act enabling

government security forces to detain prisoners for up to one year. The 1984 Terrorist

Affected Areas (Special Courts) Ordinance provided security forces in Punjab with

unprecedented powers of detention, and it authorized secret tribunals to try suspected

terrorists. The 1985 Terrorist and Disruptive Activities (Prevention) Act imposed the

death penalty for anyone convicted of terrorist actions that led to the death of others. It

empowered authorities to tap telephones, censor mail, and conduct raids when individuals

are alleged to pose a threat to the unity and sovereignty of the nation. The legislation

renewing the act in 1987 provided for in camera trials, which may be presided over by

any central government officer, and reversed the legal presumption of innocence if the

government produces specific evidence linking a suspect to a terrorist act. In March

1988, the Fifty-ninth Amendment increased the period that an emergency can be in effect

without legislative approval from six months to three years, and it eliminated the

assurance of due process and protection of life and liberty with regard to Punjab found in

articles 20 and 21. These rights were restored in 1989 by the Sixty-third Amendment.

By June 30, 1994, more than 76,000 persons throughout India had been arrested under

the Terrorist and Disruptive Activities (Prevention) Act. The act became widely

unpopular, and the Rao government allowed the law to lapse in May 1995.

Data 1995. Courtesy Library of Congress.

The following are the Fundamental Rights guaranteed by the Constitution of the nation to

its every citizen, which are primarily in the nature of restriction on the might of state over

its citizens :

Right of Equality

1. Equality before Law.

2. Prohibition of discrimination on grounds of religion, race, caste, sex

or place of birth.

3. Equality of opportunity in matters of public employment.

4. Abolition of Untouchability.

5. Abolition of Titles.

Right of Freedom

6. Freedom of Speech.

7. Protection in respect of conviction for offences.

8. Protection of life and personal liberty.

9. Protection against improper arrest and detention.

Right against Exploitation

10. Prohibition of traffic in human beings and forced labour.

11. Prohibition of employment of children.

Right to Freedom of Religion

12. Freedom of conscience and free profession, practice and propagation

of religion.

13. Freedom to manage religious affairs.

14. Freedom as to payment of taxes for promotion of any particular

religion.

15. Freedom as to attendance at religious instruction or religious worship

in educational institutions.

Cultural and Educational Rights

16. Protection of interests of minorities.

17. Right of minorities to establish and administer educational

institutions.

Saving of Certain Laws.

Right to Constitutional Remedies.

1.5.2 Fundamental Rights

In a democratic set up people are given great importance in the whole philosophy of a State. It emphasizes the fact that State exists for the individuals. Hence, certain rights of men, women and children are absolutely necessary for the effective functioning of a democratic government. Democratic governments functioning in different parts of the world mean governments by the majority with full freedom to the minority. In order that the democratic principles may operate successfully, the citizens require protection of their life, liberty and property and free opportunity to assemble and express their opinion. In order to attain these objectives, certain rights, which are generally recognised as vital and essential for effective social, political, religious and economic life of a country, are recognised and guaranteed in the most modern constitutions. The Constitution of India is no exception to this philosophy. Description of all fundamental rights as enshrined in the Constitution is a stupendous task; however, some of the Fundamental Rights important from the point of view of school education are discussed here.

I. RIGHT TO EQUALITY

The concept of equality is the guiding principle of our social living. Dynamics of social change speak of the fact that equality in every sphere of life is very essential.

— Article 14 deals with equality before law and equal protection of law. This provision asserts the supremacy of rule of law. This also means equality of rights and duties. It means that among equals the law should be equal and should be equally administered. The provision further states that all persons shall be entitled to the protection of equal laws.

— Article 15 prohibits discrimination on grounds of religion, race, caste, sex and place of birth.

— Article 16 guarantees equality of opportunity.

— Article 17 lays down that no title, not being military or academic, shall be conferred by the State.

II. RIGHT TO FREEDOM

The right to freedom has been explained in Articles 19 to 22 of the Constitution.

— Article 19 codifies the usual liberties of men, women and children. It secures freedom of speech, and expression, assembly, association, movement,

residence, acquisition and disposition of property and the right to practise any profession or to carry on any occupation, trade or business. However, there are some reasonable restrictions imposed for the purpose.

— Article 20 offers protection in respect of conviction for certain offences.

— Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

— Article 22 states that no person shall be detained in custody without being informed of the grounds of such arrest/detention nor he is to be denied the right to consult or to be defended by a legal practitioner of his choice.

III. RIGHT AGAINST EXPLOITATION

Article 23 of the Constitution prohibits traffic in human beings and forced labour and any contravention of this provision is an offence punishable in accordance with the law of the land. Similarly, Article 24 guarantees prohibition of employment of children in factories who are below 14 years of age.

IV. RIGHT TO FREEDOM OF RELIGION

Article 25: States that subject to public order, morality and health, all persons are equally entitled to the freedom of conscience and the right to profess, practise and propagate any religion.

Article 28: Emphasizes that no religious instruction shall be provided in any educational institution wholly maintained out of state funds except in those institutions established under a Trust.

V. CULTURAL AND EDUCATIONAL RIGHTS

Article 29(i) states that any section of citizens residing in the territory of India or any part thereof, having a distinct language, script or culture of its own shall have the right to conserve the same.

Article 29 (ii) emphasizes that no citizen shall be denied admission into any educational institution maintained by the State on grounds only of religion, race, caste, language or any of them.

Article 30: Establishes the right of the minorities to administer educational institutions.

VI. RIGHT TO CONSTITUTIONAL REMEDIES

The right of every man, woman and child to move the Supreme Court or the High Court by appropriate proceedings, for the enforcement of FRs is recognised and guaranteed under the Constitution. The remedies available to the citizens are petitions for the issue of directions/orders or writs in the nature of :

— Habeas Corpus. — Mandamus. — Prohibition. — Quo-Warranto. — Certiorari.

The Supreme Court (under Art.32) and the High Courts (under Art.226) have the powers to issue writs or orders for the enforcement of these fundamental rights. However, it is once again reiterated that only the relevant portions of the Fundamental Rights have been discussed here which happen to be useful and significant for teacher educators.

APPENDIX - I

1.9 UNIVERSAL DECLARATION OF HUMAN RIGHTS

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before any incitement to such discrimination.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11

1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each State.

2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purpose and principles of the United Nations.

Article 15

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 21

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

2. Everyone has the right of equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

1. Everyone has the right to work, to free choice of employment, to just and favourable condition of work and to protection against unemployment.

2. Everyone, without any discrimination, has the right to equal pay for equal work.

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4. Everyone has the right to form and join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of

unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literacy or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29

1. Everyone has duties to the Community in which alone the free and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing the recognition and respect for the rights and freedoms of others and of meeting the

just requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30

Nothing in this Declaration may be interpreted as imply for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Unit 1 Human Rights and Teacher Training (S.P. Mullick, C.J. Malhotra)

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