In case you have missed the first part of Fundamental Rights – Detailed Analysis Read Here

Right Against Exploitation

Articles 23 and 24 of the Constitution of India deal with Right against Exploitation.

Clause (1) of Article 23, while dealing with Prohibition of traffic in human beings and forced labour, states that traffic in human beings and ‘begar’ and other forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law’.

The phrase “traffic in human being”, as in 1982 the Supreme Court  in the case of People’s Union V. Union of India has explained, includes a prohibition not only of slavery but also of traffic in women or children  or the crippled, for immoral or other purposes.

However, under clause (2) of the Article 23 an exception has been made for compulsory service for public purposes. But this imposition cannot be done by a mere executive order of the State, it has to be by law. In the case of People’s Union for Democratic Rights v Union of India in 1982, it has been held by the Supreme Court that even if remuneration is paid for the labour still, if is forced, then it is unconstitutional.

It has been settled by the Supreme Court in 1990, that devdasis is included in the phrase ‘traffic in human beings’ in the case of Vishal Jeet v. Union of India. In order to give force to this Article the Parliament has enacted the Bonded Labour System (Abolition) Act, 1976.

Article 24 of the Constitution, while dealing with Prohibition of employment of Children in factories, etc, states of that ‘no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment’. In order to provide regulations for the abolition of, and punishment for employing, child labour, the child labour (Prohibition and Regulation) Act, 1986, has been enacted by the Parliament. The Act has also provisions for rehabilition of former child labourers. The Supreme Court, while issuing elaborate guidelines to child labour has stated that ‘there shall be set up child labour rehabilitation welfare Fund in which offending employer should deposit Rs. 20,000. Adult member of such child should be given employment.

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Right to Freedom of Religion

Article 25-28 of the Constitution deal with providing religious freedom to all citizens and secures a secular state in India. The Constitution has firmly established that there is no official State religion and the State has the duty to treat all religions impartially and neutrally.

Article 25 of the Constitution, while dealing with ‘Freedom of conscience and free profession, practice and propagation of religion’, assures all persons the freedom of conscience and the right to preach, practice and propogate any religion of their choice. However, the Article make it morality and health, and the power of the State to take steps for social welfare and reform.

However, the right to ‘propagate’ does not comprise the right to convert other individual because it would amount to a violation of the other’s right to freedom of conscience.

Article 26 of the Constitution, while dealing with ‘Freedom to manage religious affairs’, assures all religious denominations and sects to manage their own affairs in matters of religion, establish institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with the law of the land. However, this right is the subject to public order, morality and health.

The provisions provided in the Article do not lessen the power of the state in acquiring property belonging to a religious denomination. The State has also got the power to regulate any economic, political or other secular activity related to religious practice.

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Article 27, while dealing with ‘Freedom as to payment of taxes for promotion of any particular religion’, assures that no person can be forced to pay taxes for the promotion of any particular religion or religious activities.

Article 28, while dealing with ‘Freedom as to attendance at religious instruction, or religious worship in certain educational institutions, prevents religious instruction in a wholly State- funded educational institution. The Articles also directs that educational institutions who get aid from the state cannot force any of their members to get religious instruction or attend religious worship without their (or their guardian’s) consent.

Article 29 and 30 deal with the cultural and Educational rights that are steps to protect the rights of cultural, linguistic and religious minorities by empowering them to conserve their heritage and protect them against discrimination.

Article 29, while dealing with Protection of interest of minorities, permits and section of citizens ‘having a distinct language, script or culture of its own’ the right to conserve and promote the same. This, therefore, safeguards the rights of the minorities by prohibiting State from imposing any extreme culture on them. Article 30, while dealing with ‘Right of minorities to establish and administer education instructions’, grants the right, to all religious and linguistic minorities, to establish and administer educational institutions of their choice to preserve and promote their own culture. The Article further prevents the State, in the course of granting aid, from discriminating against any institute on the basis that it is administered by a religious of cultural minority.

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Right to Constitutional Remedies

Article 32 of the Constitution, while dealing with ‘Remedies for enforcement of rights conferred by this Part’ (Part – III of the Constitution), enables citizens to approach the Supreme Court of India to seek protection against violation of their Fundamental Rights.

Article assures remedy, in the form of a Fundamental Rights itself, for enforcement of all other Fundamental Rights. And for this purpose the Constitution has designated the Supreme Court as the protector of these rights. The Supreme Court has the power to issue writs, namely habeas corpus, prohibition, certiorari and quo warranto, for enforcement of Fundamental Rights. Exercise of Jurisdiction by the Supreme Court can also be suo motu or on the basis of a Public Interest Litigation (PIL). This right cannot be ‘suspended except as otherwise provided for by this Constitution’ (like under the provisions of Article 359, when a state of emergency is declared).

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Fundamental Rights

The term ‘Right’ has been defined as claims that are indispensable for existence and development of individuals. In India Fundamental Rights had its origin in the Indian independence movement. Through this movement developed the demand for civil liberties with an objective to end discrimination between British rulers and their Indian subjects.

However, historical documents like England’s Bill of Rights, the United States Bill of Rights and France’s Declaration of Rights of Man played a major role in the development of constitutional rights in India. It was in fact Annie Besant who first drafted the Commonwealth of India Bill in 1925, which specifically incorporated seven fundamental rights.

Part III of the Constitution of India deals with the Fundamental Rights that guarantee civil rights to all Indians and bar the state from infringement on individual liberty; it also places upon States a duty to preserve the citizens’ rights from infringement by society. Originally the Constitution of India incorporated seven fundamental Rights: 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. In 1978, with the introduction of 44 Amendment the right to property was removed from the list of Fundamental Rights. However, the right to property is still a Constitutionally protected right that is dealt in Art 300 A that states: ‘No person shall be deprived of his property save by authority of law’.

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1. The Right to Equality

The Right to Equality is incorporated in Article 14,15 and 16 of the Constitution of India. These three Article collectively enclose general principles of equality before law. Articles 17 and 18 jointly promote the philosophy of social equality.

Article 14 states,” the state shall not deny to any person equality before the law within the territory of India.” The origin of Article 14 lies in American and Irish Constitutions. It is important here to mention that the Preamble to the Constitution of India speaks of equality of status and of opportunity and this particular Article gives effect to that principle in the text of the Constitution. According to Courts of India, equal protection of the law means the right to equal treatment in similar circumstances.

Article 15 deals with the ‘Prohibition and discrimination on grounds of religion, race, caste, sex or place of birth. It is imperative to understand concerning this particular Article that in order to encourage the educational advancement of the socially and educationally backward classes of society a clause (5) has been inserted in the Article 15 through an Act of 2005 that is known as Constitutional 93^rd Amendment.

Section 2 of the Constitution (Seventy-seventh Amendment) Act, 1995 inserted a new clause 4A in the Article 16 which empowered the state to make a provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the SCs and STs, which in the opinion of the State, were not adequately represented. Article 16 deals with the equality of opportunity in matters of public employment.

Article 17 deals with the ‘abolition of untouchability’. The main object of Article 17 is to prohibit the practice of untouchability in any form. This Article has been implemented by the Protection of Civil Right Act, 1995.” Through this Act the practice of untouchability was made a punishable offence under law.”

Art 18 deals with the abolition of titles. It prohibits through this Article Indian aristocratic titles and tile of nobility conferred by the British were abolished. However, on the matter of conferring Bharat Ratna and such awards the Supreme Court has declared these awards valid on the ground that they are merely decorations and cannot be used as a title by the recipient.

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2. Right to Freedom

Righ to Freedom is incorporate in Articles 19, 20, 21 and 22 of the Constitution of India.

Article 19, while dealing with the ‘protection of certain rights regarding freedom of speech, etc. down,’ all citizens shall have the right-

1. To freedom of speech and expression;
2. To assemble peaceably and without arms;
3. To form associations or Unions (or co-operative societies) it was inserted by the Constitution (Ninety-seventh Amendment) Act, 2001.
4. To move freely through out the territory of India;
5. To reside and settle in any part of the territory of India (it was inserted by the Constitution [Forty-forth Amendment, Act, 1978]); and
6. To practice any profession, or to carry on any occupation trade or business.”

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Article 20 deals with the ‘Protection in respect of conviction for offences. It clearly states that (a) no person is to be convicted of any offence except for violation of a law in force at the time of the commission of the Act.(b) no person is to be prosecuted and punished for the same offence more than once, and (c) no person accused of any offences is to be compelled to be a witness against himself.

Article 21, while dealing with ‘protection of life and personal liberty,’ pens down,” No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21A deals with the ‘right to education’. It was inserted by the Constitution (Eighty-sixth Amendment) Act, 2002. This Article says that the ‘State shall provide free and compulsory education to all children of the age of six to fourteen years in such manners as the State May, by the law, determine.’

Article 22 deals with the ‘protection against arrest and detention in certain case.’ The Article comprises of two parts. Clauses 1 and 2 are applicable to persons arrested or detained under a law otherwise than a preventive detention law. Clause 4 to 7 are applicable to persons arrested or detained under a preventive detention law.

To be continued in next article