Unit-2

Scheme of the Fundamental Rights and Duties

Sources of Fundamental Rights

1. Constitutional makers were inspired by the rights mentioned in American

Constitution.
2. Dadabhai Nauroji during the first phase of National Movement demanded the British
Government for the provisions of freedom to Indians. Their demand for fundamental
Rights have been intensified after the establishment of INC.
3. The Motilal Nehru Committee Report (1928) reiterated this and recommended for
the inclusion of fundamental rights in the future constitution for the material and
Psychological progress of Indians.
4. The Karachi session of INC (1931) formulated a report comprising the rights and
duties needed for Indians. The Tejbhahadur Sapru Committee (1945) hinted out for
the inclusion of a list of rights in the future Indian Constitution.
5. The Rajender Prasad Sub-Committee on Fundamental Rights set up by the
Constituent Assembly suggested for the inclusion of seven fundamental in our
Constitution.

Features of Fundamental Rights

1. Fundamental Rights can’t be altered through ordinary laws.

2. Some of the rights are positive in nature. They provide scope for the citizens to enjoy
some types of freedoms.
3. Some are negative in nature. They impose some restrictions upon the activities of the
state.
4. The state may impose restrictions on all or some of the Fundamental rights of citizens
during emergency
5. They are protected by the SC and HCs through writs. They ensure justice to those
whose rights are infringed or confiscated by other including the state authorities.
6. They serve as the means for utilizing the capacities and intelligence hidden among the
Indians.

Fundamental Rights
1. Right to Equality (14-18)
Right to Equality establishes rule of law in India.
Article 14 ensures equality before law and equal protection laws for all persons residing in
India.
The words ‘equality before law’ means that all persons shall be subject to the identical
laws, courts and procedures.
No discrimination is allowed between them on the grounds of wealth, status and position.
‘Equal protection of law’ means equal treatment to all persons in similar circumstances.

Article 15 prohibited discrimination between individuals on the basis of religion, race,

caste, sect or place of birth in accessing public places. However, this article will not be an
obstacle against the sate for taking steps for protecting the interests and well being of
women and children

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 Article 16 stated that all citizens shall enjoy equal opportunities in the matters of public
employment. However, this article will not be an obstacle to the state for prescribing
certain conditions to the citizens in the matters of employment in local, state, union and
UTs. The state may allow reservations to the backward classes if it feels that the backward
classes were not provided with sufficient reservations.

The Constitution 81st Amendment Act, 2000 specified that filling up of the offices in
reserved category if not completed in a specified year the same will be done even after
exceeding 50% thereby ignoring the prevailing rules and regulations. The act further
allowed reservations to the SCs and STs in the promotional aspects of public services.

Article 17 abolished untouchability and declared its practice as a cognizable offence.

Accordingly the Indian Parliament formulated the Untouchability (Crimes) Act in 1955.
That act has been termed as Civil Rights Preservation Act since 1976. The SCs and STs
(prevention of atrocities) Act, 1989 imposes penalty and punishment extending from six to
seven years.

Article 18 forbids the State to confer any title, other than military/academic distinction on
the citizens. However, it allows the state to confer certain titles like Padmasri,
Padmavibhushan, Bharat Ratna, Parama Veerchakra, Maha Virchakra etc to military
personnel basing on outstanding performances in social, education and military matters.
It prohibits the citizens to accept any title from foreign state without the consent of the
Indian President. It also forbids the citizens to accept an office of profit or trust from other
states.

2. Right to Freedom (19-22)

Through this right, citizens are entitled to some safeguards against the oppressive acts of
the local, state and union executive authorities. Right to Freedom conferred the following
six freedoms to Indian citizens
1. Freedom of speech and expression
2. Freedom to assemble peacefully without arms
3. Freedom to form associations
4. Freedom of movement in India
5. Freedom of settlement in India
6. Freedom to practice a profession, occupation, trade or business
The six freedoms would enable the development of citizens in individual and collective
spheres. These would facilitate the progress of Indian society in socio-political and economic
spheres.

Restrictions on article 19
If necessary, state can impose certain reasonable restrictions on the enjoyment of the
above freedoms to maintain and safeguard the nation’ sovereignty and integrity, law and
order.
State can also impose certain specific restraints for safeguarding the interests of common
masses or SCs and STs.
State can impose restrictions for determining the professional and occupational
qualifications and for limiting certain professional and occupations in public sector under
takings.

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 Article 20 prescribed some penalties and safeguards incase individuals resort to criminal
acts. It provided protection against arbitrary and excessive punishment to a person who
commits an offence. As per this article-
No person shall be considered as a culprit unless he violates or disobeys the law.
No person shall be prosecuted or punished more than once for the same offence.
No person shall be forced to give evidence against himself.
However, the above safeguards are not available to those who are detained under
preventive detention.

Article 21 specifies that no person shall be deprived of his life or personal liberty except
according to the procedure established by law.
The Constitution (86th Amendment) Act, 2002 through article 21A made it mandatory for
the state to provided free and compulsory education to all children of 6 to 14 years. The
act came into existence on April, 2010

The Supreme Court held that Right to ‘live’ is not merely confined to physical existence
but it includes the right to live with human ‘dignity’ and many other following rights have
become as part of article 21.
a. Right to honorable life, b. Right to environmental safety, c. Right to health, d. Right to
seek free legal aid, e. Right to visit foreign countries, f. Right oppose lockup deaths, g.
Right to information

Article 22 prohibited the arrest of a person without a valid reason. It enabled the right to
know the reasons by the arrested and to have legal help for arguing on his behalf in the
court.
The arrested shall be produced before the nearest magistrate within a period of 24 hours of
such detention excluding the time necessary for the journey from the place of arrest to the
court of the magistrate.
No such person shall be detained in custody beyond the said period without the authority
of the magistrate.
These safeguards are available only for the citizens. They are not applicable to the people
of enemy nations and persons detained under a law provided for the prevention of terrorist
activities.

3. Right against Exploitation (23 & 24)

This right is provided to the individuals for recognizing, respecting an upholding their
dignity and self respect. It aims at a avoiding the exploitation of common people by the
affluent sections of the society.

Article 23 forbids all sorts of inhuman acts such as sale and purchase of human beings and
similar other forms of forced labour. However the state has authority to impose
compulsory military service for public purpose without any discrimination.

Article 24 prohibits the employment of children below the age of 14 years in a factory,
mine and such hazardous fields.

4. Right to Freedom Religion (25-28)

This right denotes the secular nature of Indian political system. It aims at transforming into
a secular state. Both the citizens and aliens enjoy this right.

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 Article 25 empowers every persons to profess, practice and propagate a religion of his/her
liking. However, the state can make a law regulating the activities of religious publicity or
propaganda by the individuals in the larger national interests.
Individuals, while enjoying or popularizing religious rights, must consider public order,
morality and health of others in the country.

Article 26 guarantees every person to

1. Establish and maintain religious and charitable institutions
2. Manage his/her religious affairs
3. Own and acquire moveable and immovable properties, and
4. Maintain such properties in accordance with law

Article 27 prohibits the state to impose or collect taxes from individuals purely on
religious grounds. It also forbids the state to impose and collect taxes for the benefit of a
particular religion.

Article 28 bans religious instructions in educational institutions wholly or partly receiving

state funds

5. Cultural and Educational Rights (29 & 30)

Article 29 enables every citizen to preserve and protect his/her own language and culture
irrespective of one’s religion, language or region. It also entitles the minorities to preserve
their language and culture.

Article 30 prohibits special treatment to any citizen in the admission into educational
institutions either wholly or partly funded by the state on the grounds of caste, religion,
region, colour, language or sect. However it allowed the minorities some special facilities
preserving and promoting their language and culture. The state can grant financial
assistance to them in this regard

6. Right to Property (31)

Article 19(f) provided freedom to citizens to acquire, possess, enjoy and dispose of their
property according to their wishes.

Article 31 prescribes that the state shall not take over the properties of citizens against the
provisions of existing laws. However many limitations have been imposed on this right
through the addition of Clauses A,B,C and D to Article 31.
As per article 31A the state can take over the private properties in public interests.

Article 31B provides protection to land reforms Acts of state governments by including
them in the 9th Schedule.

Article 31C declared that all laws seeking to implement Article 39(B) and 39(C) referring
Directive Principles shall be valid
The judicial organizations are deprived of their power of enquiring the cases declaring
judgments in this regard.
Finally the 44th Constitution Amendment Act, 1978 completely deleted right to property from
the list. Since then this right remained as an ordinary legal right according to Article 300A

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7. Right to Constitutional Remedies (32)
This right regarded as a fence, icon, and curtain or safety value for all other fundamental
rights. It extends protection and relief to those whose fundamental right were abridged,
confiscated or infringed by others including public authorities.

The Judiciary (SC and HCs) is authorized to issue writs for sanctioning interim relief to
the affected citizens. In this regard, the courts issue writs like Habeas Corpus, Prohibition,
Certiorari, Quo-Waranto and Mandamus for restoring the rights of aggrieved persons.
Dr B.R.Ambedkar described this right as the soul of the fundamental rights.

Restrictions on the Fundamental Rights

Articles 352, 356 & 360 impose certain restrictions on the rights. These article empower
the union government to curtain the various freedoms and rights citizens in view of peace
and order in society.

The president of India, under article 359 can issue directions for restricting or suspending
the fundamental rights excepting article 20 and 21.
Parliament can impose some restraints on clause 4,5,6 and 7 of article 21. Parliament
passed various Detention Acts such as MISA (1971), ESMA (1981) TADA (1985) and
POTA (2002).

Fundamental Duties (51A)

Introduction
The demands for separate states have increased in many states on the basis of linguistic and
geographical agitations. Many leaders who lost their temperaments during the agitations have
provoked the people to go on violence. They caused a great loss to the public and private
properties. It made the Union government to incorporate the fundamental duties into
constitution during emergency.

Union Government appointed Swaransigh Committee in 1976. The committee examined

duties mentioned in various world constitutions and suggested for the inclusion of
fundamental duties in Indian Constitution.
The government brought 42nd constitutional amendment act which included ten fundamental
duties in article 51A under part IV of our constitution. Later one more duty was added to the
above list through 86th Constitution Amendment Act, 2002.

Broad Categories of Fundamental Duties

Some writers have broadly grouped the fundamental duties under three categories.

The first category of duties refers to respecting the aims of the constitution, constitutional
law, and democratic institutions.

The second category of duties covers the matters such as fraternity and cooperation among
the people. It also includes unity in diversity, giving up regional, communal and caste
tendencies.

The third category of duties refers to the safeguarding of the public property and giving up
the violence. Certain aspects like scientific temper and doing away with superstitions are also
included in this category.

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Fundamental Duties
1. To abide by the constitution, respects its ideals and institutions, the national flag and
the national anthem,
2. To cherish and follow the noble ideals which inspired our National Movement
3. To uphold and protect the sovereignty, unity and integrity of India,
4. To defend the country and render national service when called upon to do so,
5. To promote harmony and the spirit of common brotherhood amongst all the people of
India, transcending religious, linguistic, regional or sectional diversities, to renounce
the practices derogatory to the dignity of women,
6. To value and preserve the rich heritage of our composite culture,
7. To protect and improve the natural environment including forests, lakes, rivers and
wild life and to have compassion for living creatures,
8. To develop scientific temper, humanism and the spirit of inquiry and reform
9. To safeguard public property and to abjure violence
10. To strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to the higher levels of Endeavour and achievement
11. To provide educational opportunities by the parent or guardian to his child or ward
between the age of six and fourteen years.

Significance of Fundamental Duties

The fundamental duties aim at making Indian citizens socially conscious and
responsible. Though it may not be directly possible for the judges to enforce these
duties in letter and spirit, these duties cannot be ignored totally in the interpretation of
the various constitutional provisions.

Legal provisions for the implementation of fundamental duties

Justice Verma Committee on Fundamental Duties of the citizens (1998) identified the
existence of legal provisions for the implementation of some fundamental duties.
They are:
1. The prevention of insults to National Honor Act (1971)
2. The Protection of Civil Rights Act, 1955
3. There are various criminal laws against promoting enmity between different sections
of the society
4. The wild life (protection) Act of 1972
5. The forest (conservation) Act of 1980