Fundamental Rights, Directive Principles and Fundamental Duties of India

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The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India 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 and guidelines 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.

The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, 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.

Contents 1 History 2 Fundamental Rights 2.1 Personal rights 2.2 Economic and social rights 3 Directive Principles of State Policy 4 Fundamental Duties 5 Criticism and analysis 6 See also 7 Notes 8 References

[edit] History

Main articles: Indian independence movement and Constitution of India

The development of constitutional rights in India was inspired by historical documents such as England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.^[1]

In 1928, an All Parties Conference of representatives from Indian political parties proposed constitutional reforms for India. This 11-member committee, led by Motilal Nehru, had been called into existence as a formal instrument to complement the widespread civil disobedience campaigns of the 1920s. These mass campaigns had originally been a response to the Rowlatt Acts, which in 1919 had given the British colonial government the powers of arrest and detention, conduction of searches and seizures without warrants, restriction of public gatherings and censorship of the press. Demanding dominion status and elections under universal suffrage, the committee called for guarantees of rights deemed fundamental, representation for religious and ethnic minorities and limitations on government powers.

In 1931, the Indian National Congress, at its Karachi session, adopted resolutions defining, as well as committing itself to the defence of fundamental civil rights, including socio-economic rights such as minimum wage, the abolition of untouchability and serfdom.^[2][3] Committing themselves to socialism in 1936, the leaders of the Congress party took examples from the Soviet constitution, which inspired the fundamental duties of citizens as a means of collective, patriotic responsibility.

The task of developing a constitution for an independent India was undertaken by the Constituent Assembly of India, which composed of elected representatives under the presidency of Rajendra Prasad. The assembly appointed a constitution drafting committee headed by Bhimrao Ramji Ambedkar. The process was influenced by the adoption of the Universal Declaration of Human Rights by the U.N. General Assembly on 10 December 1948. The declaration called upon all member States to adopt these rights in their constitutions. The Fundamental Rights and Directive Principles were included in the final draft of the constitution promulgated on 26 November 1949, while the Fundamental Duties were later added to the constitution by the 42nd Amendment Act in 1976.^[4] Changes in Fundamental Rights, Directive Principles and Fundamental Duties require a constitutional amendment, that must be passed by a two-thirds majority in both houses of Parliament.

[edit] Fundamental Rights

Main article: Fundamental Rights in India

The Fundamental Rights — embodied in Part III of the constitution — guarantee civil liberties such that all Indians can lead their lives in peace as citizens of India. The six fundamental rights are right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.^[5]

These include individual rights common to most liberal democracies, incorporated in the fundamental law of the land and are enforceable in a court of law. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. These rights are neither absolute nor immune from constitutional amendments. They have been aimed at overturning the inequalities of pre-independence social practises. Specifically, they resulted in abolishment of untouchability and prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They forbid human trafficking and unfree labour. They protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and administer their own educational institutions.

All people, irrespective of race, religion, caste or sex, have the right to approach the High Courts or the Supreme Court for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. In public interest, anyone can initiate litigation in the court on their behalf. This is known as "Public interest litigation".^[6] High Court and Supreme Court judges can also act on their own on the basis of media reports.

Theories of rights
Animal rights
Children rights
Civil rights
Collective rights
Group rights
Human rights
Inalienable rights
Individual rights
Legal rights
Natural rights
Negative & positive
Social rights
"Three generations"
Women's rights
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The Fundamental Rights emphasise equality by guaranteeing to all citizens the access and use of public institutions and protections, irrespective of their background. The rights to life and personal liberty apply for persons of any nationality, while others, such as the freedom of speech and expression are applicable only to the citizens of India (including non-resident Indian citizens).^[7] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.^[8]

Fundamental Rights primarily protect individuals from any arbitrary State actions, but some rights are enforceable against private individuals too.^[9] For instance, the constitution abolishes untouchability and prohibits begar. These provisions act as a check both on State action and actions of private individuals. Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of national interest. In the Kesavananda Bharati vs. state of Kerala case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended.^[10] However, the Parliament cannot alter the basic structure of the constitution, like secularism and democracy. Often called the "Basic structure doctrine", this decision is widely regarded as an important part of Indian history. In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation.^[11] According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of Fundamental Rights.^[11]

The Fundamental Rights can only be altered by a constitutional amendment, hence their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures.^[12] The imposition of a state of emergency may lead to a temporary suspension of the rights conferred by Article 19 (including freedoms of speech, assembly and movement, etc.) to preserve national security and public order. The President can, by order, suspend the right to constitutional remedies as well.

[edit] Personal rights

The right to equality is one of the chief guarantees given in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights, guaranteeing equality of all citizens before law, social equality, equal access to public areas, equality in matters of public employment, the abolition of untouchability and of titles.^[13] However, reservations (i.e, quotas in jobs, education, etc.) can be made for women, children, scheduled castes and scheduled tribes.

The State cannot discriminate against anyone in the matters of employment except for the implementation of any mandated quotas, though exceptions can be made where specific knowledge is required. To preserve religious freedom, the holder of an office of any religious institution should be a person professing that particular religion.^[14] The right to equality in matters regarding public employment is not conferred to overseas citizens of India.^[8] The practise of untouchability has been declared an offence punishable by law. The State cannot confer any titles and the citizens of India cannot accept titles from a foreign State. Indian aristocratic titles such as Rai Bahadurs and Khan Bahadurs have been abolished. However, military and academic distinctions can be conferred on the citizens of India. Awards such as the Bharat Ratna "cannot be used by the recipient as a title."^[15] A ruling by the Supreme Court on 15 December 1995 upheld the validity of such awards.

The Right to freedom is stated in Articles 19, 20, 21 and 22 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom encompasses the freedom of expression, the freedom to assemble peacefully without arms, the freedom to form associations and unions, the freedom to move freely and settle in any part of the territory of India and the freedom to practise any profession.^[16] Restrictions can be imposed on all these rights in the interest of security, decency and morality. The constitution guarantees the right to life and personal liberty. Protection with respect to conviction for offences, protection of life and personal liberty and the rights of a person arrested under ordinary circumstances^[17] are laid down in the right to life and personal liberty.

The Right to freedom of religion'—covered in Articles 25, 26, 27 and 28—provides religious freedom to all citizens and preserves the principle of secularism in India. According to the constitution, all religions are equal before the State. Citizens are free to preach, practise and propagate any religion of their choice.^[18] Several distinct and often controversial practises, such as the wearing and carrying of kirpans is included in the profession of Sikhism and protected under law.^[18] Religious communities can set up charitable institutions of their own, subject to certain restrictions in the interest of public order, morality and health. No person can be compelled to pay taxes for the promotion of a religion and a State-run institution cannot impart education that is associated with a particular religion.

[edit] Economic and social rights

The cultural and educational rights—given in Articles 29 and 30—are measures to protect the rights of ethnic and religious minorities. Any community that has a language and a script of its own has the right to conserve and develop them.^[19] No citizen can be discriminated against for admission in State or State-aided institutions.^[19] All religious and ethno-linguistic communities can set up their own educational institutions in order to preserve and develop their own culture.^[20] In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.^[20] The right to education at elementary level has been made one of the Fundamental Rights under right to life and personal liberty by the 86th constitutional amendment of 2002.^[21]

The Right against exploitation, given in Articles 23 and 24 provides for the abolition of human trafficking,^[22] and the abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines.^[23] Child labour is considered a violation of the spirit and provisions of the constitution. Begar (forced and unfree labour), practised in the past by landlords, has been declared a crime punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is prohibited by law. An exception is made in employment without payment for services for public purposes, such as compulsory military conscription.^[22]

The Right to constitutional remedies empowers the citizens to approach a court of law to appeal against denial of the Fundamental Rights. For instance, in case of imprisonment, the person can ask the court to see if it is in accordance with the provisions of the law of the country. If the court finds that it is not, the person will be released from custody. This procedure of asking the courts to preserve or safeguard the citizens' Fundamental Rights can be done in various ways. The courts can issue writs, namely habeas corpus, mandamus, prohibition, quo warranto and certiorari.^[24] When a national or state emergency is declared, this right is suspended by the central government.

The Right to property was a former Fundamental Right under Article 32 before it was revoked by the 44th Amendment Act of 1978.^[25] A new article, Article 300-A,^[26] was added to the constitution which provided that no person shall be deprived of his property, except by the authority of law. If a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay any compensation. The aggrieved person will have no right to move the court under Article 32. The right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law.^[27]

[edit] Directive Principles of State Policy

Main article: Directive Principles in India

The Directive Principles of State Policy, embodied in Part IV of the constitution, are directions given to the central and state governments to guide the establishment of a just society in the country. According to the constitution, the government should keep them in mind while framing laws, even though they are non-justiciable in nature. Directive Principles are classified under the following categories: Gandhian, social, economic, political, administrative, legal, environmental, protection of monuments, peace and security.^[28]

The Directive Principles act as a check on the government; theorised as a yardstick in the hands of the people to measure the performance of the government. Article 31-C,^[29] added by the 25th Amendment Act of 1971, seeks to upgrade the Directive Principles.^[30] If laws are made to give effect to the Directive Principles over Fundamental Rights, they shall not be invalid on the grounds that they take away the Fundamental Rights. In case of a conflict between Fundamental Rights and Directive Principles, if the latter aim at promoting larger interest of the society, the courts will have to uphold the case in favour of Directive Principles.^[29]

The Directive Principles commit the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight economic inequality.^[31] The State must continually work towards providing an adequate means of livelihood for all citizens, equal pay for equal work for men and women, proper working conditions, protection against exploitation and reduce the concentration of wealth and means of production from the hands of a few.^[32] The State must provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen for reason of economic or other disabilities.^[33] The State should work for organisation of village panchayats, provide the right to work, education and public assistance in certain cases;^[34] as well as the provision of just and humane conditions of work and maternity relief.^[35] A living wage and safe working conditions for citizens must be ensured, as must their participation in the management of industries. The State is encouraged to secure a uniform civil code for all citizens,^[36] provide free and compulsory education to children,^[37] and to work for the economic uplift of scheduled castes, scheduled tribes and other backward classes.

The Directive Principles commit the State to raise the standard of living and improve public health,^[38] and organise agriculture and animal husbandry on modern and scientific lines. The State must safeguard the environment and wildlife of the country.^[39] The State must ensure the preservation of monuments and objects of national importance and separation of judiciary from executive in public services^[40] The State must also strive for the maintenance of international peace.^[41]

The Directive Principles have been amended to meet definite objectives. Article 45, which ensures Provision for free and compulsory education for children,^[37] was added by the 86th Amendment Act, 2002.^[21] Article 48-A, which ensures Protection of the environment and wildlife,^[39] was added by the 42nd Amendment Act, 1976.^[4]

[edit] Fundamental Duties

The Fundamental Duties of citizens were added by the 42nd Amendment Act in 1976.^[4] The ten Fundamental Duties—given in Article 51-A of the constitution—can be classified as either duties towards self, duties concerning the environment, duties towards the State and duties towards the nation.^[42] The 11th Fundamental Duty, which states that every citizen "who is a parent or guardian, to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years" was added by the 86th constitutional amendment in 2002.^[21]

Citizens are morally obligated by the constitution to perform these duties. However, these are non-justiciable, incorporated only with the purpose of promoting patriotism among citizens. These obligations extend not only to the citizens, but also to the State.^[43][44] There is reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. The Fundamental Duties obligate all citizens to respect the national symbols of India (including the constitution), to cherish its heritage and assist in its defence. It aims to promote the equality of all individuals, protect the environment and public property, to develop "scientific temper", to abjure violence, to strive towards excellence and to provide free and compulsory education.^[45]

[edit] Criticism and analysis

The Fundamental Rights have been criticised as inadequate in providing freedom and opportunity for all Indians. Many political groups have demanded that the right to work, the right to economic assistance in case of unemployment and similar socio-economic rights be enshrined as constitutional guarantees,^[27] that are presently listed in the directive principles of state policy.^[46] The right to freedom contains a number of limiting clauses and has been criticised for failing to check government powers^[27] such as provisions of preventive detention and suspension of fundamental rights in times of emergency. The phrases "security of State", "public order" and "morality" are unclear, having wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, leading to frequent litigations.^[27] The Maintenance of Internal Security Act (1975) was strongly criticised for giving then-Prime Minister Indira Gandhi the authority to arrest opposition leaders following the declaration of emergency in 1975. The Prevention of Terrorism Act (2002), now repealed,^[47] has been criticised as unfairly targeting the Muslim community.^[27] Initially, the Supreme Court provided extensive power to the State in its verdict to the A. K. Gopalan vs. state of Madras case in 1950. The Court held that howsoever unreasonable, a law was valid if made by a legislature competent to enact it.^[11] If Parliament validly enacted a law permitting the State to kill without any judicial process, this would amount to "procedure established by law" and such killings would not violate the guarantee contained in Article 21.2. This interpretation was abandoned in a series of decisions starting from the 1970s and culminating in the judgement in 1978 Maneka Gandhi v. Union of India, which issued the basic structure doctrine.^[11] In D. K. Basu vs. state of West Bengal the Supreme Court ruled that the limiting clauses of the constitution as well as international human rights instruments do not come in the way of the Court’s awarding of compensation in the cases of illegal arrest or detention, protecting the rights of citizens inspite of prevailing circumstances.^[48] The freedom to assemble peaceably and without arms is allowed, but in many cases, these meetings are broken up by the police if they become disruptive.^[49][50]

Freedom of press, meant to guarantee freedom of expression, has not been included in the constitution.^[27] Employment of child labour in hazardous environments has been reduced, but their employment in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit of the constitution in the eyes of many critics and human rights advocates, as more than 16.5 million children are being used as labour.^[51] India was ranked 88 out of 159 countries in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians.^[52]

Efforts to implement the Directive Principles include the Programme for the Universalisation of Elementary Education and the Five-Year Plans have accorded the highest priority in order to provide free education to all children up to the age of 14. The 86th constitutional amendment of 2002 created Article 21-A, that seeks to provide free and compulsory education to all children aged 6 to 14 years.^[21] The State runs welfare programmes such as boys' and girls' hostels for scheduled castes and scheduled tribes' students.^[53] The year 1990-1991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar.^[54] 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. 4.77 crore (47.7 million) was released for this purpose.^[55] 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.^[56]

Land reform legislations have been enacted several times to provide ownership rights to poor farmers.^[57] Up to September 2001, more than 2 crore (20 million) acres of land had been distributed to scheduled castes, scheduled tribes and the landless poor. A core objective of the banking policy is to improve banking facilities in the rural areas.^[58] The Minimum Wages Act of 1948 empowers government to fix minimum wages for people working across the economic spectrum.^[59] The Equal Remuneration Act of 1976 provides for equal pay for equal work for both men and women.^[60] The Sampoorna Grameen Rozgar Yojana (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.^[61]

A system of elected village councils, known as Panchayati Raj covers almost all states and territories of India.^[62] One-third of the total number of seats have been reserved for women in Panchayats at every level; and in the case of Bihar, half the seats have been reserved for women.^{[63] [64]} Legal aid at the expense of the State has been made compulsory in all cases pertaining to criminal law, if the accused does not have the means to engage a lawyer.^[33] The judiciary has been separated from the executive "in all the states and teritories except Jammu and Kashmir and Nagaland."^[40][55] India's foreign policy has been influenced by the Directive Principles. India supported the United Nations in peace-keeping activities, with the Indian Army having participated in 37 UN peace-keeping operations.^[65]

The implementation of a uniform civil code for all citizens has not been achieved owing to widespread opposition from various religious groups and political parties. The Shah Bano case (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 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 and in response the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 overturning the Supreme Court's verdict.^[66] 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.^[67]

The Fundamental Duties have been criticised for being ambiguously worded, with the real meaning of phrases like "scientific temper" and "spirit of enquiry and reform" being debated. As the duties cannot be enforced through courts, their relevance to practical affairs is questioned. However, actions damaging public property and showing disrespect to the National Flag are offences punishable by law. Similarly, people may be called upon to defend the country by compulsorily recruitment to the armed forces of the country through conscription.^[45]

[edit] See also

• Fundamental Rights in India
• Directive Principles in India
• Constitution of India
• Writs in Indian law
• Human rights in India

[edit] Notes

India

This article is part of the series: Politics and government of India

Constitution Fundamental Rights, Directive Principles and Fundamental Duties President A. P. J. Abdul Kalam Vice-President Bhairon Singh Shekhawat Government Prime Minister Manmohan Singh Deputy Prime Minister Ministers Parliament Rajya Sabha Chairman Bhairon Singh Shekhawat Lok Sabha Speaker Somnath Chatterjee Recent Elections General elections, 2004 State Assembly elections Political parties Supreme Court Chief Justice Yogesh Kumar Sabharwal High Courts District Courts States and territories Human rights Political scandals Foreign relations

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[edit] References

Basu, Durga Das (1988), Shorter constitution of India, New Delhi: Prentice Hall of India Basu, Durga Das (1993), Introduction to the constitution of India, New Delhi: Prentice Hall of India Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69 (English) (HTML). World Legal Information Institute. Retrieved on 2006-05-25. Date of ruling 15 December 1995 Kesavananda Bharati vs. state of Kerala; AIR 1973 S.C. 1461, (1973) 4 SCC 225 (English). Wikipedia. Retrieved on 2006-05-25. In this case, famously known as the "Fundamental Rights case", the Supreme Court decided that the basic structure of the Constitution of India was unamendable. Laski, Harold Joseph (1930), Liberty in the Modern State, New York and London: Harpers and Brothers Maneka Gandhi v. Union of India; AIR 1978 S.C. 597, (1978).

Pylee, M.V. (1999), India’s constitution, New Delhi: S. Chand and Company, ISBN 81-219-1907-X Sinha, Savita, Das, Supta & Rashmi, Neeraja (2005), Social Science – Part II Textbook for Class IX, New Delhi: National Council of Educational Research and Training, India, ISBN 81-7450-351-X Singh, J. P., Dubey, Sanjay & Rashmi, Neeraja, et al. (2005), Social Science – Part II Textbook for Class X, New Delhi: National Council of Educational Research and Training, India, ISBN 81-7450-373-0 Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, District Sirmour, Himachal Pradesh: Avichal Publishing Company, ISBN 81-7739-096-1 O'Flaharty, W.D. & J.D.M., Derrett (1981), The Concept of Duty in Asia; African Charter on Human and People's Right of 1981 Article 29 of Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.