Fundamental Rights of India

Rights and Fundamental Rights of the individual

Status of England

मूल अधिकार

In England and elsewhere there is a judiciary guarding the rights of the individual. But there is a fundamental difference. In England, the court has full power to protect the person against the tyranny of the executive, but the courts become powerless when the legislature invades the rights of the person. In short, there is no fundamental right binding against the Legislature of England. The Parliament of England is theoretically omnipotent. There is no method that he cannot change. As has been said before, the person has the right but they are based on the common law of the country which the Parliament can change like other laws. Therefore, there is no such authority which Parliament can change like other laws. Therefore there is no such right which can be called a fundamental right in the real sense. Another important consequence of the supremacy of Parliament is that the Courts of England do not have the power of judicial review of legislation. No law can be declared unconstitutional on the ground that it violates any fundamental right or natural right.

Charter in America

There is a fundamental difference between England and the United States in the manner in which the question of the rights of the individual is viewed. The difference is that the people of England were concerned with protecting the rights of the individual by exercising the power of the executive, while the creators of the US Constitution were apprehensive not only from the tyranny of the executive but also from the tyranny of the legislature, that is, the legislature at that time. In the majority.

Similarly, the US Deed of Rights (which is included in the first ten amendments of the US Constitution) is as much bound on the Legislature as the Executive. This has resulted in the establishment of “judicial supremacy” in the US. Just as England has parliamentary supremacy. Courts in the United States are competent to declare an Act of Congress unconstitutional on violation of any provision of the deed of rights. In addition, the Legislature is not capable of upholding or accommodating fundamental rights in the face of an emergency or a threat to the state. In the US, this water power has been taken by the judiciary.

History of the demand for fundamental rights of India

The Simon Commission and the Joint Parliamentary Committee in India, which was responsible for the Government of India Act, 1935, rejected the idea of ​​enacting the declarations of Fundamental Rights on the grounds that abstract declarations are meaningless unless the will to effect them and Resources should not exist. But from the time of the Nehru Report (a report published in 1928 by a committee formed under the chairmanship of Pandit Motilal Nehru to outline the principles of the Constitution of India by an all-party conference), nationalist opinion was definitely in favor of the right deed because the British state The experience gained from this was that the legislature of the Spaniards was ready to serve the executive in reducing personal liberty. Therefore, ignoring the British opinion, the framers of the Constitution adopted fundamental rights for the protection of individual liberty and for the attainment of social, economic and political justice for every member of society (along with the director elements). The evidence that he succeeded in his endeavor comes from the statement of a deep scholar of the Indian Constitution (Granville Austin, The Indian Constitution (1996) –

It is a past that fundamental rights in India have created a new equality … and helped protect individual liberties. The value of rights by looking at the number of rights promises before the High Court and the Supreme Court.” Is worshiped. Repeated use of prerogative writings shows that the public has accepted them well. The traditional arguments against the inclusion of the rights mentioned in the constitution have not been proved right in India. In fact, the opposite is true in this case.

Courts have the power to declare statutes that violate the Fundamental Rights as void

The Constitution of India has included many fundamental rights in Part 3. These (subject to some exceptions which will be mentioned later) are in the form of limitations imposed not only on the executive but also on the powers of the Legislature. Although this is exemplified by the Constitution of America, the Constitution of India goes far beyond that and in a way establishes a harmony between the principles of parliamentary sovereignty and judicial supremacy. On the other hand, Parliament in India cannot be said to be sovereign in the sense in which the Parliament of England is legally considered to be omnipotent. Our Parliament is composed by written constitution and has its limitations. Our Parliament can legislate under the restrictions and prohibitions imposed by the Constitution, such as Fundamental Rights, distribution of legislative powers, etc. If these limitations are violated, then the Supreme Court and the High Court are

Are able to declare a method as non constitutional and null. As far as the violation of Fundamental Rights is concerned, this duty has been entrusted to the Courts by the Constitution [Article 13]. This has been done with extreme caution. Clause (2) of Article 13 is as follows: –

The State shall not make any law which takes away or diminishes the rights conferred by this Part and shall be void up to the extent of any law violation made in violation of this section.

To this extent, our Constitution follows the American ideal, not England. But judging by the powers of the Legislature in India, the powers of the judiciary are less than two things as compared to the US.

Differentiation from the Deed of American Rights of Fundamental Rights under the Constitution of India

The declaration of the first US rights deed is final. The power to impose restrictions on the fundamental rights of the individual in the interest of the group was developed by the judiciary. In the case of major fundamental rights in India, this power has been expressly granted to the Legislatures by the Constitution. The power of judicial review is in the hands of the judiciary to determine the reasonableness of the restrictions imposed by the Legislature.

44th Amendment Act, 1978: Right to property

Secondly, the Janata government under the leadership of Shri Morarji Desai hastily omitted the important fundamental right of Article 9 (1) (f) and 31, right to property, by the 44th Amendment Act, 1978 of the Constitution. The provisions of this Article 31 (1) are laid down by the same amendment in a new Article – Article 300A. It is outside Part 3 of the Constitution and is depicted as Chapter 4 of Part 12 which is not a Fundamental Right (it is about Finance, Contracts, Property and Litigation).

The circumference of fundamental rights contained in Part 3 of the original constitution during the 30 years of Congress rule was gradually shortened by a number of amendments. But the Janata government completely destroyed a fundamental right.

The result of the amendments made in the right to property is:

1. The right not to be deprived of property without the authority of law is not a fundamental right. Therefore, if the property of someone is taken without the authority of the law or by executive order in violation of the law, then the aggrieved person will have no right to apply to the Supreme Court under Article 32.
2. If the Legislature makes a law to deprive a person of his property, that person cannot object to the reasonableness of the restriction imposed by such law under Article 19 (1) (f), as this provision no longer exists. Huh.
3.  Clause (2) of article 31 has been omitted, therefore, there is no guarantee against the Legislature in respect of the right of property of that person in respect of the compensation of a person when property is taken. (In the original constitution) Article 31 (2) contained the principle that if the state makes compulsory acquisition or acquisition of private property, it must (a) enact a law, (b) such a law shall be for public purpose, and (c) ) The person who has taken the property should be given some compensation.

By the 25th Amendment in 1971, in place of Mrs. Indira Gandhi, in place of “compensation”

The word “sums” was kept, whose sufficiency could not be objected to in the court. Despite this, the Supreme Court determined that if the sums were notional or the amount was so low that it would lead to the confiscation of property. The aggrieved person can complain, but this possibility has been erased by the 44th amendment.

The brief argument given for abolishing the fundamental right to property in the 45th Amendment Bill’s statement of objectives and reasons is that it is being converted into a legal right. This means that Articles 19 (1) (f) and 31 (2) of the original Constitution bind the dignity of the Legislature. The 45th Amendment Bill makes the Legislature the custodian of a person’s right to property. There can be no bond between his goodwill and wisdom. But if the Legislature is considered innocent and never forgetful, then all the fundamental rights should be removed from Part 3. As we have said earlier, the justification of the restrictions imposed on the Legislature by securing the fundamental rights is that history proves that any group of human beings who are in majority in any Legislature in the country is ever decadent. Neither can it happen. This is why it becomes necessary to permanently protect the person from legislative atrocities and that is why constitutional safeguards are made.

Thirdly, the scope of the Fundamental Rights has been narrowed by subsequent amendments, with some exceptions to their enforcement. These are Articles 31A, 31B, 31C, 31D.

Fundamental Rights Exceptions

(A) Of these, Articles 31A and 31C are exceptions to the fundamental rights enumerated in Article 14 and Article 19. This means that the law cannot fall within the ambit of Article 31A (Law for Agricultural Reforms) or Article 31C (Law giving effect to the Directive Elements contained in Part 4 of the Constitution) on the ground that It violates the fundamental right guaranteed in Article 14 (equality before law) and Article 19 (freedom of expression, association etc.).

(B) Article 31B makes almost complete exceptions to all the fundamental rights enumerated in Part 3. If an Act is included in the 9th Schedule (which shall be read along with Article 31B), such enactment shall be exempt from constitutional law by virtue of violation of any fundamental right.

But after 24-04-1973 (ie, the date of the decision of Kesavananda), it can be attacked on this basis, it is damaging the basic structure of the constitution.

Fundamental Duties

Fourthly, a counterintuitive entry has been made by the 42nd Amendment Act, 1976 i.e. the basic duties mentioned in Article 51A. This duty is not enforceable by the court and their violation is not punishable either. However, the court before which the enforcement of the fundamental right is being done will read all the parts of the constitution, it will refuse to enforce the fundamental right on the motivation of a person who has clearly violated any of the duties specified in Article 51A. . If this is the case then the emphasis on fundamental rights in the original constitution has now become minimal.

The list of Fundamental Rights in Part 3 is explored

Fifth, the list of Fundamental Rights enumerated in Part 3 of the Constitution is exploratory. The US Constitution (9th Amendment) expressly states that enumeration of certain rights in the rights deed will not be interpreted to mean that other rights determined by the public have been reduced or the public has been deprived of them. It is based on the principle of irreversible natural rights which cannot be snatched away from the individual in an independent society. Granting the guarantee of some of those rights in the written constitution does not end up those rights which were not in the person before the constitution. For example, the right to do political activities. But no such authority is listed in our constitution.

As one of the early decisions was communicated in Gopalan v. State of Madras, the Legislatures are sovereign under our Constitution but their sovereignty is governed expressly or by necessary scrutiny by the Constitution. Courts cannot impose any further decorum on the basis of their sovereignty-based principles of the spirit of the Constitution or “natural rights”, that is, rights other than those enumerated in Part 3 of the Constitution. Extension of Fundamental Rights under the Constitution of India. The Supreme Court has moved very far in this direction by expanding the Article 21 article.

Rights derived from other provisions of the Constitution

It should not be taken for granted that there is no authority in our constitution outside of Part 3 which can be enforced by the court. Some limitations have been imposed on the state by other provisions of the Constitution. With these limits, the person gets the immediate right that if the executive or the legislature violates them, then he should get them to go through the court. For example, Article 265 states that “no tax shall be imposed or collected by the authority of law, otherwise not”. This provision empowers the individual that it will not be subject to executive-arbitrary taxation and the aggrieved person may seek treatment from the court if the executive tries to levy tax without legislative approval. The new provision of Article 300A belongs to this category. Similarly Article 301 states that “subject to the other provisions of this part, trade, commerce and intercourse throughout the territory of India shall be free”. If the Legislature or the Executive impose any restriction on the freedom of trade or intercourse which is not justified in accordance with the other provisions of Article 13 of the Constitution, the person affected by such restrictions may object to that act by appropriate legal proceedings. .

Difference between Fundamental Rights and Rights guaranteed by other provisions of the Constitution

Now we have to see what is the difference between the fundamental rights embodied in Part 3 of the Constitution and the rights arising out of the limitations contained in the other parts which can be conferred equally by the Court. The rights of both these classes are equally sub-judice, the right to get treatment under Article 32 by applying directly to the Supreme Court has been included as a fundamental right in Part 3. This treatment is available in the condition of basic rights. If the right derives from any other provision of the constitution, for example Article 265 or Article 301, then the aggrieved person can obtain satisfaction by filing an ordinary suit or by making an application under Article 226 in the High Court, but the application cannot be made under Article 32. Unless the violation of such right is a violation of the fundamental right.

Fundamental rights in constitutions cannot be changed by constitutional amendment. The word “origin” also emits this sound. In other words, they are given a higher position than other provisions of the Constitution. But this principle is not accepted in our constitution. This interpretation derives from amendments to the constitution and judicial decisions.

It is right that no part of the constitution can be changed by general legislation unless authority has been given for it in the constitution itself (eg Article 4) but all parts of the constitution, including fundamental rights, are amended under Article 368. The Act can be amended by passing but the basic features cannot be amended. There is a history behind this establishment:

Amendment of fundamental rights; Basic characteristics

A.Golaknath’s decision, the Supreme Court had held that there is no part of our constitution that cannot be amended and any part of the constitution can be amended by passing the Constitution Amendment Act in compliance with the requirements of Article 368. Fundamental Rights and Article 368 are also included in this.

According to this earlier opinion, courts can serve as the guardians of fundamental rights until they are amended by the majority required by the Parliament of India. In fact, the amendments of the constitution were made so far that the judicial proclamations could be promulgated on the basis of which social or economic legislations were declared invalid on the grounds of violation of fundamental rights. For example, in Ramesh Thapar v. State of Maat and Braj Bhushan v. State of Delhi, the narrow interpretation of clause (2) of Article 19 by the Supreme Court was superseded by the Constitution (First Amendment) Act, 1951. The interpretations given in the State of West Bengal v. Gopal Dwarka Das v. Solapur Spinning and Prudential Bengal v. Bela Banaji were superseded by the Constitution (Fourth Amendment) Act, 1955.

But the Supreme Court stayed the process of amendment of the Fundamental Rights through the amendment procedure laid down in Article 368 of the Constitution by the well-known decision of Golak Nath v. State of Punjab. The Supreme Court, reversing its two earlier judgments, held that the Constitution conferred a paramount position on the fundamental rights enshrined in Part 3 whereby any authority acting under the Constitution exercised the amending power under Article 368. The Parliament of India is also capable of amending the Fundamental Rights.

By amending Articles 13 and 368 by the 24th Amendment Act, 1971, it was clarified that subject to the procedure laid down in Article 368, the Fundamental Rights can be amended. Thus the decision of the majority of the court in Golak v. State of Punjab was overthrown.

In the case of Kesavananda Bharti, the majority overturned the case of Golaknath, accepting the validity of these amendments. It stipulated that the Parliament was competent to amend the Fundamental Rights under Article 368. This Article does not create any exceptions in favor of Fundamental Rights, nor do the Acts of Article 13 which amend the Constitution itself. At the same time, it was also decided in Kesavananda’s plea that the power of amendment has certain limitations. The basic features of the constitution cannot be changed by the use of this power.

Acting with special majority to bring elemental changes in the constitution, a major obstacle in the path of the constitution is that the new principle of “Basic Characteristics” formulated by the court. This hurdle can only be overcome if a bench of 13 judges in Kesavananda’s case is ready to overturn the decision made in that suit. Meanwhile, by implementing Kesavanand, the Constitutional Bench has declared majority (4) and (5) of Article 368 invalid on the grounds of violation of the basic features of the Constitution.

The provisions of Part 3 of our constitution in which the Fundamental Rights have been written are more elaborate than other existing written constitutions and there are many types of subjects under them.

The constitution categorizes fundamental rights into seven groups –

1. Right to equality .
2. Exclusive Freedom of Rights.
3. right against exploitation.
4. Right to freedom of religion.
5. Rights related to culture and education.
6. property right.
7. Right to Constitutional Remedies.

Note :-

• Of these, the right to property has been abolished by the 44th Amendment Act, leaving six freedoms under Article 19 (1).
• Some basic rights are given only to citizens –

1. The status of discrimination on the basis of religion, race, caste, sex, or birth (Article 15)
2. Equality of opportunity in the subject of public employment (Article 16)
3. Freedom of speech, communion, confluence, transmission, residence and profession (Article 19)
4. Rights related to culture and education to minorities [Articles 29-30]