Fundamenta Rights and Fundamental Duties

       TCS/TPS : Paper III: Section A, ( ii).   

        Fundamental Rights and 

        Fundamental Duties  

  

     The Fundamental Rights are defined as the basic human rights of all citizens. 

     Part III under Article 12 to 35 of the Indian Constitution contains all the fundamental

    rights applicable to all the individuals irrespective of race, religion, caste, creed or gender or

     place of birth. All these rights are enforceable by the courts, subject to specific restrictions.

  

       The basic idea behind formulating these Fundamental Rights/ Magna Carta  is to

       i)         Prevent arbitrary exercise of power,

       ii)        Promote socio-economic programs

       iii)       Protect minorities and others.  

       

      Part III of the Constitution is described as the Magna Carta of India.

• ‘Magna Carta’, the Charter of Rights issued by King John of England in 1215 was the first written document relating to the Fundamental Rights of citizens.  
• Fundamental rights are against the state not against individual. 

     Article 12 defines state in the following manner:

           

         In this part unless the context otherwise requires, State includes
         1. The Government and Parliament of India
         2. The Government and Legislature of each of States
         3. Local Authorities or
         4. Other Authorities
        Within the territory of India or under the control of Government of India.

Dharmender Sharma vs Union Of India And Others on 21 March, 2013

Rajasthan Cooperative Dairy ... vs Manoharlal Sharma on 25 January, 1983

R.D.Shetty v/s International Airport Authority

Whether BCCI is a State or not?

The relevant Judgement in this regard is Zee Telefilms v. Union of India. Supreme Court affirmed that BCCI is not created by a statute, not dominated by government either financially, functionally or administratively. Hence,it cannot be called a State as under Article 12 of Indian Constitution.

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Article 13: All laws should conform to Fundamental Rights 

Article 

Article 13 makes all laws in force in the country immediately before the commencement of the constitution void so far they are inconsistent with the provisions of the Part III.

   

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    Classification of Fundamental rights

1. Right to equality (Article 14-18)

2.     Right to freedom (Article 19-22)

3.     Right against exploitation (Article 23-24)

4.     Right to freedom of religion (Articles 25-28)

5.     Cultural & educational rights (Articles 29-30)

6.     Right to Property (Article 31)

      ( withdrawn by 44^th Amendment, 1978 and converted into legal rights under Art. 300A)

7.     Right to constitutional remedies (Article 32).

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       (Articles 32-35): Right to Constitutional Remedies 

Rights, in order to be meaningful, must be enforceable and backed by remedies in case of violation. This article guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of Fundamental Rights and deals with the Supreme Court’s power to issue order or writs for the enforcement of Fundamental Rights.

Article 33 empowers Parliament to modify the application of Fundamental Rights to the armed forces or forces charged with the maintenance of public order. On the other hand, Article 35 lays down that the power to make laws to give effect to certain specified Fundamental Rights shall vest only with the Parliament and not with State Legislatures.

     Article 34: It provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India. The martial law is imposed under extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law.

During period of Emergency( Art. 352,356 and 360) there might be infringement Fundamental rights of citizens which are judicially granted by the constitution of India . however there will be no suspension of rights assured by Art. 20 and Art. 21. 

Why fundamental rights are called fundamental? 

They are called fundamental because while ordinary rights may be changed by the legislature in its ordinary process of legislation, a fundamental right being guaranteed by the constitution cannot be altered by any other process shorter than that required for amending the constitution itself. 

And also these are the basic rights for all round development and to live with dignity for an individual. 

Right to equality (Article 14-18)

Article 14: Represents the idea of equality, which states that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15: Non-discrimination on grounds of religion, race, caste, sex, or place of birth 

Article 16: Equality of opportunity in public employment 

Article 17: Abolition of Untouchability and forbids its practice in any form.

Article 18: Abolition of Titles

Title like Raja, Maharaja, Sir, Nawab, Rajbahadur etc  are abolished but Military, Academic titles are allowed.

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Right to Freedom (Article 19-22)

 

Article 19: Right to Freedom  

Article 19 is known as backbone of part III of Indian Constitution. 

The Right to Freedom guarantees to the citizens of India 6(six) Fundamental Freedoms: 

( These freedoms are not absolute but enjoyable through 8 reasonable restrictions . These are 

i) sovereignty and integrity of India,  ii) the security of the State, iii) friendly relations with foreign States, iv) public order, v) decency or morality, vi) contempt of court, vii) defamation, viii) incitement to an offence )

19(1)(a) Freedom of Speech and Expression,  ( Restriction 19(2))

19(1)(b) Freedom of Assembly, ( Restrictions 19(3))

 (Any assembly non in compliance to reasonable restrictions will be called unlawful assembly and can be dispersed by section 129 of CRPC)  

19(1)(c) Freedom to form associations,  ( Restrictions 19( 4)) 

19(1)(d) Freedom of Movement, 

 ( Restrictions 19(5) Can be curtailed in the interest of General public, protections of scheduled tribes ) 

19(1)(e) Freedom to reside and to settle, 

 ( 19(5) Can be curtailed in the interest of General public, protections of scheduled tribes ) 

19(1)(g) Freedom of profession, occupation, trade, or business. ( Restrictions 19(6))

Note: 19(1)(f) right to property deleted by 44th amendment in 1978. 

What is the difference between reside and settle ? 

Right to information has been given the status of a fundamental right under Article 19(1) of the Constitution in 2005. Article 19 (1) under which every citizen has freedom of speech and expression and the right to know how the government works, what roles it plays, what are its functions, and so on.

 

Article 20: Protection in respect of Conviction for Offences 

Article 21: Protection of Life and Personal Liberty 

Article 21A gives free education to all children of the age of six to fourteen years such manner as the State may, by law, determine.

Article 22: Safeguards against Arbitrary Arrest and Detention

Arrest is two types i,e punitive and preventive. 

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FUNDAMENTAL DUTIES

Article 51A under Part IVA was incorporated Fundamental Duties of the citizens in Indian constitution in the 42nd Amendment, 1946.

 Fundamental duties speak about moral obligations of all citizens of a country to promote unity, patriotism.  A citizen should not expect to enjoy all the privileges and freedom under the law without bothering or neglecting their fundamental duties.

Initially there were 10 fundamental duties at Part IV. By the 86th Amendment in 2002,  one more Fundamental duties added under Article 51A, Part IV-A of the Constitution of India.  New addition is

k)       To provide opportunities for education to children between 6-14 years of age, and duty as parents to ensure that such opportunities are being awarded to their child.

 

 Fundamental duties.—It shall be the duty of every citizen of India—

 (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

 (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

 (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

 (i) to safeguard public property and to abjure violence;

 (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;

 (k) To provide opportunities for education to children between 6-14 years of age, and duty as parents to ensure that such opportunities are being awarded to their child.

Fundamental Rights	Fundamental Duties
Fundamental Rights are the freedoms guaranteed by the constitution which can’t be taken away from a citizen.	Fundamental Duties are the legal responsibilities bestowed upon the citizens to perform.
Fundamental Rights are considered to be the essential rights for over all development and living with dignity	Fundamental Duties are the moral responsibilities
Fundamental Rights are justifiable i.e. scope of legal intervention by court is available.	Fundamental Duties are non-justiciable and hence can’t be taken to the court of law.