FUNDAMENTAL RIGHTS? There were seven fundamental Rights in the original Constitution, but by the 44th Constitutional Amendment of the Indian Constitution Right to Property was removed from the list of Fundamental Rights in 1978.
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Facts Related to the Fundamental Rights
- Fundamental rights has been taken from the Constitution of the United States of America.
- The fundamental rights description is in Part-3 of the Constitution (Article 12 to Article 35)
- It can be amended and during a national emergency (Article 352), other fundamental rights can be suspended except the right to life and personal liberty.
- There were seven fundamental rights in the original constitution but by the 44th Constitutional Amendment (1978 AD)
Indian Citizens have the Following Fundamental Rights
- Equality or Right to Equality – (Article 14 to Article 18)
- Right to freedom of speech and expression – (Articles 19 to 22)
- Right against Exploitation – (Article 23 to 24)
- Right to Religious Freedom – (Articles 25 to 28)
- Culture and Education – (Articles 29 to 30)
- Right to Constitutional Remedies – (Article 32)
Explanation of Fundamental Rights
1. RIGHT TO EQUALITY
Article 14: Equality before the law – This means that the state shall make uniform laws for the right persons and apply them equally to them. This article states that State shall ensure the equal protection of the laws within the territory of India.
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth or State shall not discriminate in any sphere of life towards citizens on grounds of religion, race, caste, sex and place of birth, etc. So, there will be no discrimination.
Article 16: Equality of opportunity in the matter of public employment.
So, there shall be equal opportunity for all citizens in matters relating to employment or appointment to any office under the State. Exceptions – Scheduled Castes, Scheduled Tribes, and Backward Classes and Poor persons from General caste.
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Article 17: Abolition of untouchability – because of the Abolition of untouchability, it has been declared an offense punishable with it.
Article 18: Abolition of titles – No title shall be conferred by the state except military or legislative honors. A citizen of India cannot accept any title from any other country without the permission of the President.
2. RIGHT TO FREEDOM
Article 19 – The original constitution mentioned 7 types of freedom, now there are only 6:
- 19 (a) – Right to freedom of speech and expression
- 19 (b) – assemble and assemble peacefully without arms.
- 19 (c) – freedom to form associations
- 19 (d) – free movement in any part of the country.
- 19 (e) – reside and settle freely in any area of the country. (except Jammu and Kashmir)
- 19 (f) – Freedom to carry on any business/profession and livelihood.
Protection with respect to conviction for offences – It describes three kinds of freedoms
(a) A person will be punished only once for an offence.
(b) Punishment will be given under the law which is at the time of committing the crime and not under the law made before and after.
(c) No person shall be pressurized to testify against himself in court.
Protection of life and self-liberty: No person shall be deprived of his right to life and personal liberty except according to a procedure established by law.
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Article 21 (a)
The State shall give free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. (by 86th amendment 2002).
Protection in arrest and detention in certain cases: Provides three kinds of liberty to any person who is arbitrarily taken into custody:
(1) The reason for the detention has to be given.
(2) He shall be produced before the Magistrate within 24 hours (except at the time of arrival).
(3) He shall have the right to consult a lawyer of his choice.
The provisions thereof are mentioned in clauses 3, 4, 5 and 6 of Article 22 of the Indian Constitution. Under the Preventive Detention Act, a person is arrested before committing a crime.
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The purpose of preventive detention is not to punish a person for a crime, but to prevent him from committing a crime.
In fact, this preventive detention may be for the security of the state, maintenance of public order or for reasons of India.
When a person is arrested under any method of preventive detention, then
(a) The government can keep such a person in jail for only 3 months. If the arrested person is to be kept in jail for more than three months, then for this the report of the advisory board has to be obtained.
(b) The person so detained shall be informed on the grounds of detention as soon as possible, but the facts which the cancellation will be deemed to be against the public interest, it is not necessary to disclose them.
(c) The person detained should be given an opportunity at the earliest to make a representation against the order of detention.
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Methods Created so far relating to Preventive Detention
1). Preventive Detention Act, 1950: The Parliament of India passed the first Preventive Detention Act on 26 February 1950.
Its purpose was to prevent the anti-national elements from acting adversely against India’s defense.
It was to expire on April 1, 1951, but its life was extended from time to time. It finally came to an end on December 31, 1971.
2). The Internal Security System Act, 1971: 44th Constitutional Amendment (1979) was contrary to this and due to this it came to an end in April, 1979.
3). Protection of Foreign Exchange and Prevention of Smuggling Act, 1974: Earlier, the period of detention for smugglers was 1 year, which has been increased to 2 years by an ordinance on July 13, 1984.
4). National Security Act, 1980 (NSA): Implemented in all other states except Jammu and Kashmir.
5). Terrorist and Subversive Activities Prevention Act (TADA): This was the most effective and most stringent law among the laws that were made so far under the preventive detention system. Then, It was abolished on 23 May 1995.
6) Prevention of Terrorism Act, 2002 (POTA): It was implemented on October 25, 2001. ‘Pota’ is a form of Tada. Under this, a total of 23 terrorist groups have been banned.
Provision has also been made to punish terrorists and those hiding information related to terrorists.
The police can arrest anyone on the basis of suspicion, but cannot keep him in custody for more than three months without a charge sheet.
A person arrested under POTA can appeal to the High Court or the Supreme Court, but this appeal can also be made only three months after the arrest, this was terminated by an ordinance on 21 September 2004.
3. Right against Exploitation
Prohibition of traffic in human beings and forced labour: It has prohibited the sale and purchase of any person, begari and similar other forced labor, the violation of which is an offense punishable according to law.
Note – If needed, therefore, then he can be compelled to do national service.
Prohibition of employment of children: No child below the age of 14 years may be employed in factories, mines or any other hazardous work.
4. Right to Freedom of Religion
Freedom of conscience and freedom to profess, practice, and propagate religion: Any person may profess and propagate any religion.
Freedom to manage religious affairs: A person has the right to establish and maintain institutions for his religion, to acquire, own and administer lawful property.
The state cannot compel any person to pay such taxes, the income of which has been specially earmarked to be spent in the promotion or maintenance of any particular religion or religious denomination.
Religious education shall not be imparted in any educational institution wholly maintained by State law.
Educational institutions cannot compel their students to participate in any religious ritual or listen to any sermon forcibly.
5. Rights related to Culture and Education
Protection of minority interests: A minority can preserve its language, script and culture and shall not be barred from admission to any government educational institution on grounds only of language, caste, religion and culture.
Right of minorities to establish and administer educational institutions: Any minority class can run an educational institution of its choice and the government will not discriminate in any way in granting it.
6. Right to Constitutional Remedies
Hon. Dr. Bhimrao Ambedkar has called the ‘right to constitutional remedies‘ the soul of the constitution.
Under this, the right to approach the Supreme Court by appropriate proceedings has been given for enforcement of civil rights and In this context, then the Supreme Court has been empowered to issue five types of writs, which are as follows:
- Habeas Corpus
- Prohibition Articles
- Rights query article
(1) Habeas Corpus
It was issued at the request of a person who considers that he has been illegally imprisoned. In this, the court orders the officer to make the prisoner to present the imprisoned person, at a fixed place and within a certain time, so that the court can consider the reasons for the detention.
The article of mandamus is issued when an officer does not perform his public duty. Therefore, the basis of such an order, an order is issued to the officer to perform his duty.
(3) Prohibition Articles
In this, the order is issued by the Supreme Court and then the High Court to the lower courts and quasi-judicial tribunals, ordering not to proceed in this matter because this matter is outside their jurisdiction.
Hereby the subordinate courts are directed to transfer the cases pending with them to a higher court on the grounds of error of law.
When a person begins to act as an officer of which he is not legally entitled to act, then the court, by order of questioning of rights, asks that person by what authority he is working and unless he gives a satisfactory answer to this point he cannot do the work.
AMENDMENT OF CIVIL RIGHTS
- The decision given before the decision of Golaknath v State of Punjab (1976) stipulated that any part of the constitution can be amended, because of included Article 368 and Civil Rights.
- The Supreme Court stayed the amendment of Fundamental Rights through the procedure laid down in Article 368 in the judgment of Golaknath v. Statehood of Punjab (1967). That is, Parliament cannot amend the Fundamental Rights.
- Article 13 and 368 were amended by the 24th Constitutional Amendment (1971) and then it was determined that the Fundamental Rights can be amended by the procedure given in Article 368.
- In the decision of Keshavananda Bharati vs the State of Kerala, this type of amendment was given legal recognition, that is, so the decision of Golaknath vs the State of Punjab was set aside.
- Clauses 4 and 5 were added to Article 368 by the 42nd Constitutional Amendment and therefore, it was provided that such an amendment cannot be called in question in any court.
- By the decision of Minerva Mills v Union of India (1980) then it was determined that the court has the right to protect the basic features of the constitution and the court can review any amendment on this basis.
Therefore, Through this, the arrangement made by the 42nd Constitutional Amendment was also abolished.