Fundamental Rights : Indian Constitution
The Indian constitution contains a chapter on fundamental rights. Part III (Art. 12-35) contains fundamental rights of Indian citizens. The fundamental rights are called fundamental because they are basic to the development of human personality.
The Indian fundamental rights, contrasted with such rights contained in the U. S. bill of rights, present several peculiarities. First, the fundamental rights in India are far more elaborate than in the U. S. A. Thus, for example, the U. S. bill of rights (first ten amendments) only names some rights. The Supreme Court, through the process of judicial review decides the limitations on these rights. In India, determination of limitations on fundamental rights is not left to judicial interpretation. The constitution itself contains (clauses 2-6 in Art. 19) such limitations. The limitations contemplated by the constitution are-
public order,
security of the state and
sovereignty and integrity of India.
In the face of these limitations, the fundamental rights guaranteed by the constitution cannot be said to be absolute.
However, whenever the state restricts fundamental rights by legislation, the courts have the right to examine whether the limitations imposed are ‘reasonable or not.†The courts are free to strike down any law imposing unreasonable restriction on the enjoyment of fundamental rights. The courts in India enjoy a limited degree of judicial review with respect to fundamental rights.
Yet, in view of these limitations, some critics argue that the Indian constitution gives fundamental rights with one hand and takes them away with the other. It should also be pointed out that provision of preventive detention under Art. 22 is a gross violation of the individual liberty under Art. 21. The power of the state to detain persons without trial is not to be found in any other democratic country like the U. S. A. Further, in case of proclamation of emergency under Art. 352, fundamental rights guaranteed under Art. 19 remain suspended by virtue of Arts 358 and 359.
Again, the Indian constitution is based on the theory of Parliamentary sovereignty and not constitutional sovereignty, as is the case in the U. S. A. Consequently, the Parliament may easily tamper with Indian fundamental rights. The capacity of the judiciary to afford protection to the fundamental rights is very limited. The Supreme Court verdict that the fundamental rights are not amendable was subsequently reversed. In the Keshavanand Bharati case, Supreme Court held that the Parliament may amend the entire constitution. It cannot only alter any basic feature of the constitution.
The processes of amendment given in Art 368 are far easier than the one given in Art 5 of the U.S. constitution. Consequently, the Union Parliament with a qualified majority may now easily amend any fundamental right contained in Part III of the constitution.
Kinds of fundamental rights
The Indian constitution originally provided 7 categories of fundamental rights. But one fundamental right, that to property was removed from the list of fundamental rights by 44th amendment. Right to property now is an ordinary legal right. Thus there are now 6 categories of fundamental rights. These are:
(1) Right to equality (Arts. 14-18).
In this category there are five rights
equality before law,
abolition of discrimination on grounds of caste, race, sex or religion,
equality in public employment,
abolition of untouchability, and
abolition of titles.
(2) Rights to freedom.
(Arts. 19-22) these now include six freedoms-
freedoms of speech and expression,
freedom of assembly without arms of association,
freedom of movement,
freedom of residence and
freedom of profession oroccupation.
These freedoms are however not without limitations.
(3) Rights against exploitation (Arts. 24 and 25)
Include prohibition of traffic in human beings and prohibition of child labour.
(4) Rights to freedom of religion (Arts. 25-28)
Include freedom of conscience and freedom of religion. Citizens are free to profess and practice any religion. These provisions make India a secular state.
(5) Cultural and Educational rights (Arts. 29-30)
Include right to protection of language, script and culture given to the minorities. The minorities are also given the right to establish and administer educational institutions of their own.
(6) Right to constitutional remedies (Arts. 32-35)
Provides for enforcement of fundamental rights through the judicial process.
Thus the constitution contains an elaborate scheme of fundamental rights. But the fundamental rights in India are not absolute. They are hedged by many limitations. Indeed, fundamental rights cannot be absolute anywhere in the world. Countries differ only in their degree of limitations on fundamental rights.
