Essay on the Fundamental Rights

In this essay we will discuss about the fundamental rights in the Indian constitution. After reading this essay you will learn about:- 1. Fundamental Rights and the Indian Constitution 2. Historical Background of the Fundamental Rights 3. Peculiar Features of the Fundamental Rights 4. Restrictions of the Fundamental Rights 5. Courts and Fundamental Rights and Other Details.

List of Essay on the Fundamental Rights

Essay Contents:

Essay on Fundamental Rights and the Indian Constitution
Essay on Historical Background of the Fundamental Rights
Essay on Peculiar Features of the Fundamental Rights
Essay on Restrictions of the Fundamental Rights
Essay on Courts and Fundamental Rights
Essay on Evaluation of the Fundamental Rights
Essay on the Right to Equality
Essay on the Right to Freedom
Essay on the Right to Freedom and Preventive Detention
Essay on the Right against Exploitation
Essay on the Right to Freedom of Religion
Essay on the Cultural and Educational Rights
Essay on the Right to Constitutional Remedies
Essay on the Parliament and Fundamental Rights

1. Essay on Fundamental Rights and the Indian Constitution:

Inclusion of Fundamental Rights in the constitutions is comparatively of recent origin. These rights are being highly valued and these days advancement of a state is measured by the rights which it extends to its citizens.

In Indian Constitution, Fundamental Rights have also been given to the people for the first time with the provision that all subsequent laws enacted contrary to these rights could be declared unconstitutional.

Arrangement of Fundamental Rights as embodied in the Constitution has, however, been much criticised. Some critics have gone to the extent of saying that Constitution makers in India have given rights with one hand and taken by the other.

A part of the Constitution is devoted to fundamental rights, which Indians can enjoy during normal times. These Rights can, however, be snatched away from the citizens during emergencies. The Rights, among other things, include right to freedom of assembly, association, faith, expression, etc.

These are justifiable and courts of law are competent to declare any law, which is violative of these rights as unconstitutional or ultra-vires of the constitution, if need be. Such an action can be taken only if an appeal is made by a citizen to review a law or an executive order, which in his opinion is ultra-vires of the Constitution.

2. Essay on Historical Background of the Fundamental Rights:

Inclusion of fundamental rights as a constitutional guarantee as said above, is comparatively of recent origin. It was felt after French Revolution and the US struggle for freedom that nations of the world should seriously think of giving some basic rights to their peoples.

It was in 1789 that French National Assembly adopted ‘The Declaration of Rights of Man’. The Constitution of the USA also incorporated a chapter on Fundamental Rights.

In 1945, Universal Declaration of Human Rights was made, which was adopted by the General Assembly of UNO on December 10, 1948, which included social, economic, political and cultural rights of the people. In India, it was in Nehru Committee Report of 1928, that suggestion was made for the inclusion of religious and cultural rights as basic rights of the citizens.

Simon Commission, which visited India to review India’s constitutional progress did not favour the idea of inclusion of Fundamental Rights in the constitution. So was the view point of Joint Parliamentary Committee on Indian Constitutional Reforms (1933-34).

In 1931, Indian National Congress at its Karachi session prepared a document containing a list of fundamental rights and duties. Sapru Committee Report on Constitutional Proposals (1945), however, supported the idea of inclusion of Rights in the proposed Indian Constitution.

Constitution makers in India were guided by public sentiments and national demand in this regard and accordingly a chapter on Fundamental Rights was added to the constitution.

3. Essay on Peculiar Features of the Fundamental Rights:

In India Fundamental Rights have some peculiar features in India, which are usually not found in the constitution of other countries. Whereas in some respects these are in accordance with the Rights extended to the people of other countries, in other respects these differ from these as well.

The Rights guaranteed to the people are not absolute. Each Right is conditioned by certain duties. There is no Right which has no corresponding obligations. It is, however, worth remembering that the constitution has very extensively elaborated rights and the courts of law have very little to twist these to suit to their convenience or take shelter of duties.

While justifying the need for putting restrictions Dr. B.R. Ambedkar said in the Constituent Assembly, “What the draft constitution has done is that instead of formulating Fundamental Rights in absolute terms and depending on the Supreme Court to come to the rescue of Parliament by inventing the doctrine of implied power the permits in state directly to impose restrictions on these Fundamental Rights. There is, thus, no difference in the result.”

Another feature of these Rights is that these are justifiable. It implies that the Rights are above everything else in the land. All the executive actions or laws passed by our legislatures must be in conformity with our Fundamental Rights.

If any law passed by the executive government is considered against any fundamental right or any of its provision the citizens have every right to approach the court of law which have the power of judicial review. If the courts, after examination, are satisfied that a particular law passed by the legislature, is not in conformity with the constitution and violates a fundamental right that can be declared unconstitutional or ultra vires of the constitution.

Then another feature is that Fundamental Rights have been very much elaborated. It is said that these have been so much elaborated that no other constitution has discussed these in such a great length and with such minute details, as Constitution of India.

It is said that, “It is unique feature of the Indian Constitution that it sets out in the Constitution itself the most elaborate declaration of human rights yet framed by any state.”

Fundamental Rights as embodied in our Constitution can be divided into two broad categories; namely, those which impose certain restrictions of negative character on the state without conferring special privileges on the citizens.

Then there are positive rights which confer privileges on the people, e.g., Article 18 desires that the state will not confer any special titles on the citizens. Art 17 similarly abolishes untouchability. These can easily be covered in the former category. Right to liberty, equality or freedom to > express or worship come under the second category.

Then another feature of these rights is that these make a distinction between the citizens and the aliens. Whereas rights to freedom to worship and equality before law are available even to, aliens right to freedom and speech and assembly is available only to the citizens.

Thus, all rights are not available to all living in India. Similarly there are certain rights which are denied to a particular sections(s) of society e.g., armed forces personnel do not enjoy political rights.

Then another feature of our rights is that these are available only against the state and not against any private party. If state violates any right the aggrieved party can seek redress through courts of law but if some violation is by an individual, he or she will have to take recourse to ordinary law of the land.

One of the most important and significant feature of our Rights is that these can be suspended. It is peculiar in the sense that no constitution of the world has made any such provision. According to our constitution as soon as state of emergency is declared in the country Fundamental Rights stand suspended and the courts of law are debarred to enforce these.

It is this provision which was very vehemently and bitterly opposed in the Constituent Assembly. The opposition felt that it was the darkest day of our history when a provision was made for denying Fundamental Rights to our people.

In the words of H.V. Kamath, “If we get peace in that state it will be the peace of the grave and the void of the desert. When the tempests blow, the weight of this great negation will be so very heavy that the whole edifice will collapse.”

Dr. Ambedkar, however, felt that the inclusion of such a provision was essential to save the country from disruptive elements and also a guarantee to the people to have maximum freedom. In his own words, “This provision is absolutely necessary. It will save democracy from danger and extinction.”

Not only in emergencies, but even in normal times Articles 33 and 34 of the Constitution empower the Parliament to decide about applicability and extension of fundamental rights to the people working in the armed forces or engaged in services responsible for the maintenance of peace and order. To that extent the application of fundamental rights can be suspended by an Act of Parliament.

Under emergencies the people are denied to take shelter under the roof of judiciary in-so-far as Fundamental Rights are concerned. These also stand suspended when the people are arrested under Preventive Detention Act, which empowers the state to arrest a person for his being a danger to the security of the state.

Under the constitution, the state can put some restrictions on the operation of Fundamental Rights but it is for the courts of law to see whether the restrictions imposed are justified or not. In India rights have, however, been divided into two categories. Some rights are available to the citizens alone, while others are available to all those living in this country whether they are citizens or not.

Thus, whereas freedom of speech, assembly and expression come under the first category, in the second category fall right against exploitation and freedom of religion, etc.

Fundamental Rights in India are a guarantee against the state action but in some cases, these restrictions are also against specific class of persons or against all persons within the territory of India. Article 15(2) prohibits incrimination on grounds of religion, race, caste and sex, etc., whereas Article 17 forbids practice of untouchability in any form.

Under Article 23 beggary is forbidden, whereas Article 24 prohibits employment of children below the age of 14 in any factory or mine.

These are such restrictions which are against private individuals. On the other hand, there are provisions which deal with the state e.g., under Article 14 it is provided that the state shall not deny to any person equality before law whereas Article 15 says that state shall not discriminate against any citizen on grounds of religion, race, caste and sex.

Whereas Article 16 ensures equality of opportunity, Article 18 prohibits the state on conferring any titles. The state in India has been conferring titles like Bharat Ratna, Padam Vibhushan, Padam Bhushan and Padam Shri on the citizens of India for their meritorious services on the plea that these did not infringe Art 18 of the constitution.

But in 1977, when Janata Government came to power it dispensed with such titles on the ground that these were not in keeping with spirit of Article 18 of the constitution. In 1980, when Janata Government was ousted from power these honours were again bestowed on the citizens and Mother Terasa was awarded Bharat Ratna in that year. Since then every year these honours/titles are being conferred on the citizens of India.

The ‘state’ can amend, modify or abridge Fundamental Rights. Under Article 12 of the constitution an effort was made to define the term ‘state’. It was then said that, “The state in India shall mean government and Parliament of India, government and legislatures of the states and all local and other authorities within the Union of India, any departmental organ of the Government of India, any public authority exercising statutory powers; but state excludes judiciary and hence the judgments of the courts cannot be challenged on the ground that these contravene Fundamental Rights.”

D.D. Basu is of the view that, “The Courts, like any other organ of the state, are limited by the mandatory provision of the constitution and they can hardly be allowed to over-ride fundamental rights under the shield that they have, within their jurisdiction, the right to make an erroneous decision.”

Fundamental Rights, as provided in Part III of the Constitution, do not provide constitutional remedy, in case of their infringement by private individuals, except as otherwise provided.

In the case Behram Khursid Pesikada Vs. State of Bombay, it has been held that the Doctrine of Waiver enunciated in America cannot be applied in India. The court held the view that the Fundamental Rights as incorporated in the constitution are not primarily for individual benefit but have been put in the constitution as a matter of public policy.

The courts have maintained that it is not open to an individual to relieve the state of an obligation imposed upon the state by Article 14 of the constitution.

Then another feature of these Rights is that though the constitution empowers the Parliament to impose restrictions on the exercise of Fundamental Rights in the public interest, yet the Parliament is not absolutely free in this regard. The Courts can examine reasonableness of these restrictions and multify if these are found unreasonable.

4. Essay on Restrictions of the Fundamental Rights:

Under the constitution fundamental rights can be suspended and it is left to the courts to put reasonable restrictions on them. The Parliament can restrict or even abrogate by law to the members of the armed forces, political rights with a view to ensuring proper discharge of their duties and enforcing discipline among them.

After the passing of Forty-Fourth Constitution Amendment Act (Articles 35 and 359) it is provided that Article 19 of the constitution will only be suspended when there is emergency in the country due to actual outbreak of war or threat of external aggression and not on the ground of apprehended armed rebellion.

Then comes the power of the Parliament to take away Fundamental Rights guaranteed by the Constitution to the citizens of India. The Constitution has devoted a part to Fundamental Rights, which are available to the citizens and others living in India. Parliament has a right to amend the constitution.

A question, therefore, arises whether by a constitutional amendment can Parliament amend fundamental rights or even take away these rights? In other words, are Rights above the amending powers of Parliament or not.

In the famous Gokal Natli case it has been held by the Supreme Court that under Article 368 of the constitution, Parliament cannot modify, restrict or impair Fundamental Rights. But the position was again reviewed in the case of: His Holiness Kesvananda Bharti Vs. State of Kerala and Others.

In this case a Bench of 13 judges of Supreme Court held that the constitution invested the Parliament the right to alter, abridge or abrogate Fundamental Rights guaranteed by the constitution.

In this way the Parliament, by a constitutional amendment can curtail, suspend or modify these Rights. In this very case the court held the view that the Parliament could not change basic structure of the constitution. But in the view of the court fundamental rights do not come under the orbit of basic structure.

The court, however, did not specify as to what was covered under basic structure. It was left undefined or unspecified. Articles 31 and 32 and 358 and 359 of the Constitution which deal with Fundamental Rights were touched by Forty-Second Constitution Amendment Act, whereas Forty-Fourth Constitution Amendment Act again touched these Articles of the Constitution.

In this way, the Parliament has amended these Rights and can even put restrictions on these as well in the way it likes.

But again in May, 1980 the Supreme Court held that the Parliament has not got unlimited rights to amend the Constitution. In the view of the Court the Parliament by a constitutional amendment cannot provide that the courts have no right to interfere in certain matters.

The constitution provides that no law of the land shall be against Fundamental Rights. In this regard the term law is very wide. It includes not only the laws in force but also the ordinances, orders, bye laws, rules, regulations, notifications, customs and usages having the force of law.

5. Essay on Courts and Fundamental Rights:

The constitution has put heavy responsibility on the courts of law regarding its interpretation and to decide whether a particular Act or decision re-government is in keeping with the constitution or violates any provision of any Fundamental Right or not. It is again left to the courts to decide whether restrictions put on the exercise of these Rights are reasonable or not.

This has raised certain issues in recent times, most important being the relationship of the judiciary with the Parliament. A powerful section of society believes that the Parliament represents the will and wishes of the people. It is thus supreme in all respects and its decision should be binding on all. The courts of law should deliver their judgments keeping in view- social, economic and political conditions of the country.

These should not ignore the aspirations of the people which find expression through the enactments passed by their elected representatives sitting in both the Houses of Parliament. On the other hand, there is another equally strong section of society which believes that judiciary is the balancing wheel between the executive and the legislature.

It is the custodian of the constitution, which is steel framework of nation’s governance and as such it is to go by what is provided in the constitution.

It cannot introduce any extraneous elements like personal biases or the view point of the people and so on. It is, however, clear that even the constitution makers did not like that the judiciary in India should act as third House of the legislature.

In the words of Jawahar Lal Nehru, “No Supreme Court and no judiciary can stand in judgment over the sovereign will of the whole community. If we go wrong here and there, it can point it out but in the ultimate analysis where the future of the community is concerned; no judiciary can come in the way”.

Under the constitution any citizen of India can approach a court of law that a particular Act passed by Parliament or state legislature or any of its provision is against the Fundamental Rights or a particular Right as guaranteed to the people of India. But the courts of law proceed on the presumption that there is no unconstitutionality in a measure passed by the state.

Therefore, these will not declare any measure ultra-vires immediately as soon as a petition has been moved or will not stay the operation of an Act merely because that has been challenged.

It is left to the petitioner to establish that the measure passed or promulgated is ultra-vires of the Right(s) guaranteed to the people by the constitution. The courts will move only when the petitioner has established to their satisfaction that a provision of any Act knocks down a provision of an Article in Part III of the constitution.

The Constitution of India, which has conferred Fundamental Rights on the citizens of India came into force on 26th January, 1950. At that time there were several cases which were pending before the courts of law which were violative of these rights.

The courts were approached to declare such cases as ultra-vires of the constitution. But these held different view. In the case’ of Kesvanadhawa Menon Vs. The State of Bombay the Supreme Courts held that Article 13(1) can have no retrospective effect.

In the case of Lachhman Das Vs. The State of Bombay the Court held that, “If a pre-constitution state prescribed a discriminatory procedure that procedure cannot be operative after the commencement of constitution for enforcing the pre-constitution rights acquired or liabilities incurred.” But all post constitutional laws which are inconsistent with the Fundamental Right(s) are void. In the case of R.C. Cooper Vs.

The Union of India it was held that while declaring a measure as unconstitutional not only object and form of the state action is to be seen, but what is to be seen is also as to what will be the effect of law on the Fundamental Rights of the individual or group of individuals. With the passage of time certain basic principles have emerged with respect to Act 13 of the constitution.

It is now fully well accepted that Act 13(2) cannot be invoked to prevent a legislature from passing a Bill. It can operate only when a Bill becomes an Act.

Though an Act may appear null and void, yet that cannot become so unless and until the courts of law declare it so. No court will declare an Act null and void unless a person who feels aggrieved has approached the court and challenged the constitutionality of any particular law and has established that.

While determining constitutionality or otherwise of a measure care will also have to be taken as to what will be the effect or impact thereof on Fundamental Rights. Even the validity of an ordinance can be challenged, if need be and whether an Act is unconstitutional or not the burden of proving that lies on the person who has challenged the validity of the measure.

Forty-Second Constitution Amendment Act provided that while deciding whether an Act passed by the central government was constitutional or not, it should be decided by 2/3 majority of a Bench consisting at least of seven judges.

It was also provided that the courts of law could declare an Act passed by a state government unconstitutional and for that a special procedure was prescribed in this amendment. Forty-Third Constitution Amendment Act has, however, abrogated that and thus restored original position.

6. Essay on Evaluation of the Fundamental Rights:

Much has been said about the nature of Fundamental Rights as embodied in the Constitution of India. Many praise it because it is for the first time that these Rights have been given to the people of India and that too under very disturbed and uncertain conditions. But there are others who argue that these rights are unreal because each right has certain restrictions imposed with it. No right is absolute.

Then it is said that some social and economic rights which are available to citizens of other countries are not available to Indian citizens. It is also said that language used in articles dealing with Fundamental Rights is such that that cannot be understood and followed by ordinary citizens. This has resulted in a lot of litigation. The remedies available to the people are very expensive and poor Indians cannot afford it. The Rights are also meaningless because vast illiterate majority is neither aware of these nor knows their significance. Only few rich or politically awakened legal minded citizen can take advantage of these and not the masses.

But at the same time it will have to be accepted in all fairness to the framers of the Indian Constitution that they tried to give maximum to the people of India. They could not give such rights as right to work, because of financial limitations. Similarly they could not give all other rights which were available to affluent western societies. Similarly in absence of cheap remedies they could not afford to keep these rights as non-justifiable and make these meaningless.

In fact, they included only such rights in Part III of the Constitution which were really available to the people. Imposing of restrictions was unavoidable because of prevailing conditions in India. In fact, restrictions to some extent and in some form are put everywhere. Experience has shown that imposition of restrictions was unavoidable. These restrictions have proved good for the nation so far.

7. Essay on the Right to Equality:

Articles 14-18 of constitution of India confer on the citizens the right to equality, which implies that all citizens in the state are equal before the eyes of law and that there can be no discrimination in any manner on the basis of caste, creed, religion or sex.

All shall be equal in holding public offices and will be thrown open on the basis of the ability of the person concerned without any consideration for caste, creed, religion or sex. Untouchability, which distinguishes one person from the other, has been abolished and declared a legal offence.

Except military and academic distinctions, the state can neither confer any titles on the citizens nor the citizens are to be allowed to accept titles from foreign governments.

This right also provides that all shall have equal access to all public places of worship. It also implies that all citizens of India shall be governed by the same rules. Even the foreigners under Indian Government service are not allowed to accept any titles or distinctions.

In order to provide equal opportunity, there will be no system of reservation of seats in government services except in the case of scheduled castes, scheduled tribes, other backward classes, for war widows and physically handicapped persons and that too for a very limited period.

In this connection special attention is invited to the abolition of untouchability which was in practice in India for centuries but had unfortunately degenerated itself and thus became a social curse. Incidently abolition of untouchability is in accordance with Gandhian principles and philosophy.

Thus, Article 15 ensures social equality and Article 16 economic equality and establishes social order. In order to make provisions dealing with untouchability very effective the government has passed Untouchability Offences Act, 1955 which has made it a punitive offence to practice or follow untouchability in any form or manner.

But equality does not mean that every law must have similar application for all classes under all circumstances. Since different classes have different needs, therefore, each class will have to be given different treatment. Thus, for legitimate purposes the state can classify persons and every such classification is likely to give birth to some inequality.

But if a law deals equally with persons of well defined classes, there is nothing wrong in that, if that does not apply to other persons. But each classification must be founded on intelligible differentiation which must have a rational relation to the object sought to be achieved by the statute in question. It is not always necessary that the basis of classification must be stated in the law.

In the case of Satish Chandra Vs. The Union of India, the Supreme Court held, as early as in 1953, that guiding principle of Article 14 was that all persons and things under similar circumstance shall be treated alike both in privileges conferred and liabilities imposed.

Thus in equal treatment does not arise as between the persons governed by different conditions and different set of circumstances and that the like should be treated alike.

In the words of Shukla, “The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in the course of time they stand in equal position with the more advanced sections of society. It would not in any way be improper if that principle would also be applied to those who are handicapped but do not fall under Article 15(4).”

Thus, reservation of seats in educational institutions for students of backward classes and the scheduled caste and tribes is covered by Article 15(4).

It is because of uplifting of other backward classes and weaker sections of society that central government and state governments have reserved seats for them in educational institutions and services even up to the extent of 70%. The Supreme Court has, however, held reservation up to 50% valid.

But right to equality is not absolute, e.g., the President of India or Governor of a state is not accountable to the courts of law for all acts done by them in the performance of their special duties. No criminal proceedings can be instituted against them.

State can take steps for the advancement of socially and economically backward classes and reserve seats further in public sources which has now been actually done. In certain cases the Parliament can even fix residential qualifications for certain jobs. The Supreme Court has held that under our constitution law cannot be arbitrary and if it is it will be invalid whether under Art 14 or 19 or 21 whichever be applicable.

8. Essay on the Right to Freedom:

Articles 19 to 22 of the constitution deal with right to freedom which implies freedom of speech and expression and also that of holding of assemblies. The right also ensures freedom of movement throughout the Union Territory of India and also of forming associations, residing and setting down in any part of the country.

It also implies that all citizens of India have full freedom to acquire as well as hold, sell or purchase property in any part of the country. The right gives freedom to practice any legal profession and that the state shall in no way hinder a citizen from practising any legal profession. The people have personal liberty to have any trade or business. Freedom of expression also indirectly implies freedom of press.

All Indian citizens can hold peaceful assembly without arms and have freedom of association. Every Indian can move freely throughout the country without any restrictions.

But as already said the Rights are not absolute and so is the case with this Right. The people have freedom of expression but that is not to be used for defamation purposes. Similarly, the state can also put restrictions on this freedom when it is felt that this freedom is being used for spoiling India’s friendly relations with any foreign government.

The state is also empowered to put reasonable restrictions for maintaining law and order. Similarly, when public morality and order is in danger, the right to form associations can be restricted.

No association can be formed for promoting or encouraging illegal strikes. States can prescribe technical qualifications for starting or remaining in a particular profession or trade. Each detained or arrested person has to be produced before the nearest magistrate within 24 hours of the arrest.

The Right to Freedom also has many implications. It implies that a person can be convicted for an offence when he has violated any law. None can be punished for the same offence more than once and one cannot be compelled to stand as witness against oneself.

It also implies that no citizen of India can be punished except according to procedure established by law. The Right gives the citizens power and authority to have legal assistance and forbids the state for detaining a person without making him know about his offence. No arrested person can be kept in detention for long without orders from some judicial authority.

9. Essay on the Right to Freedom and Preventive Detention:

Constitution, however, provides that Right to freedom can be denied to a person who has been detained under Preventive Detention or Maintenance of Internal Security Act or similar other Act. Such a denial can be both punitive as well as precautionary.

In the former case the person concerned has already committed some crime whereas in the latter case he is likely to commit crime and it is felt that his detention is essential in the national interest. It can be used both in normal times as well as in emergencies.

According to this provision, the person concerned can be detained for a period of 3 months at the most but in case his detention is considered essential even beyond that period, in such cases the matter should be referred to a Board of 3 persons who are qualified to act as judges of a High Court.

It is also provided that the person so detained should immediately be told about the reasons of his detention and given an opportunity to represent his case and seek legal advice. The Government of India passed Preventive Detention Act, 1950 which has subsequently been amended from time to time.

Incorporation of Preventive Detention clause with our Right to Freedom has very much been criticised. Dr. B.R. Ambedkar himself confessed that no clause in the constitution has been so bitterly criticised as this one. While expressing his views in the Constituent Assembly Pandit Thakur Das Bhargava said that it was ‘crown of all our failures’.

Bakshi Tek Chand was of the opinion that this clause was ‘charter of oppression and denial of liberty’. Main objections raised were that the period of initial detention of 3 months was rather too long in which even torture could be used. No provision had been made for supporting the family of detenue and that even the government could use Advisory Board to its own advantage.

But Dr. B.R. Ambedkar justified the incorporation of this clause stating that in India all persons did not believe in democratic means and methods for achieving their ends.

This clause was, therefore, essential for those who did not accept democratic means and machinery. In this connection opinion of Justice Shastri deserves consideration.

He said that, “This sinister looking feature so strangely out of place in a democratic constitution which invests personal liberty with sacrosanctity of a fundamental right and so incompatible with the promise of the preamble is doubtlessly designed to prevent an abuse of freedom of anti-social and subversive elements which might endanger the national welfare of the infant republic.”

Forty-Fourth Constitution Amendment Act has provided that.

4. “No law providing for Preventive Detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of said period of two months that there is in its opinion sufficient cause for such detention : provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the chairman shall be serving judge of the appropriate High Court and other members shall be serving or retired judges of any High Court.”

Under Act 19 of the constitution it is provided that the citizens shall have right of freedom of expression, peaceful assembly without arms and forming associations, and unions. These should not, however, endanger sovereignty and territorial integrity of India, public order, effect or endanger morality, incite for offences or spoil, India’s relations with foreign countries.

The right of freedom of speech and expression, however, empowers the state to put necessary restrictions so that the security of the state is not endangered. There is of course right to assembly but such an assembly can be declared illegal or unconstitutional, if there is an apprehension that that would result in breaking public peace.

In 1971, the Government of India passed Maintenance of Internal Security Act to deal with internal problems of the country and under this Act some persons were detained. Under one of the provisions of the Act it was provided that during emergency a person could be detained without consulting Advisory Board.

Sambhu Nath Sarkar, who was detained under the provisions of the Act, challenged its validity. The High Court decided that the Act was bad in law and ordered the release of the petitioner.

In order to come over the situation government issued an ordinance by which it was provided that the government could detain a person if it was satisfied that activities of such a person were prejudicial to the defence of India or country’s relations with foreign countries or maintenance of supplies and services essential to the community. Constitutional validity of this ordinance was also challenged but Supreme Court did not agree with the petitioners.

But petitions were also moved in some of the High Courts challenging the validity of the Ordinance and Act that replaced that. On different grounds some courts accepted the petitions and ordered the release of the detenues.

In some cases the Supreme Court also held that detention under MIS A would be invalid under certain circumstances e.g., when person was detained for maintaining law and order instead of public order, or if the petition of a person was not considered or, when the grounds of detention were very vague or the court had taken a very narrow interpretation of any term and so on.

The court also ordered the release of Magan Gope in February, 1975 maintaining that there was no relation between smuggling and public order and as such provisions of MISA were not attracted.

On June 26, 1975, internal emergency was declared in the country and with that MISA provisions were used. The Act was also amended to deal with the situation and where necessary ordinances were issued by the President to see that the provisions of MISA were really effective.

Under these provisions it was provided that the detaining authority was not obliged to give reasons for detention of a person but required to make a declaration that the detention of person concerned was necessary. The necessity of detention was to be reviewed after every four months.

The state government which ordered the detention of person concerned was not obliged to disclose the material under its possession, which compelled it to detain a person. A person whose detention order had been invoked in one case, could be immediately- detained as well, if state government felt it unavoidable.

A detenu also could not approach a court of law because no reasons for detention had been given. If necessary foreigners could also be detained under MISA. This Act continued to remain in force till 1995, when Government of India decided to withdraw it.

The Constitution empowers the state to put reasonable restrictions on the citizens. What are these ‘reasonable’ restrictions have not been defined. But with the passage of time certain guidelines have emerged. It is accepted that restrictions should not be of arbitrary nature and there should be proper balancing between the scope of freedom and nature of social control.

Then the restrictions should not be on the abstract principles and should take general public interests into consideration.

Then it should also be seen that the restrictions are so imposed that these help in promoting ‘Directive Principles of the State Policy’ and do not go against these. It is also expected that the restrictions should not be blind of socio-economic conditions of the people. In case these are ignored, then it can be said that the restrictions are either abstract or unreasonable.

In 1980, National Security Ordinance was promulgated which empowered the government to detain persons responsible for communal or caste riots or in such activities which were prejudicial to national security. Such a person could be detained for a maximum period of 12 months but he was given a right to challenge decision of the government in a court of law.

He was also to be informed about the cause of his detention. In 1981, was passed ESMA (Essential Services Maintenance Act) which empowered the government to ban strikes, lock outs, etc. In government offices. The strikers could be dismissed and arrested without warrant and summarily tried.

In this connection it may be mentioned that as long as MISA was operation it was grossly misused. Its worst use was made during 1975-77 period of emergency when thousands were put behind the bars. This misuse was continued even after the emergency was lifted. In 1977, when Janata government came to power it annulled MISA but state governments promulgated ordinance on MISA lines.

Madhya Pradesh government promulgated in 1977. The Prevention of Public Disorder which subsequently became an Act. Jammu & Kashmir State for the same purpose enacted Public Safety Act. In 1990, Lok Dal government which came to power at the centre initiated Preventive Detention Act to deal with economic offences.

In 1980, when Congress party came to power after defeating Janata party in September of that year it passed National Security Act which provided for the detention of persons responsible for communal and caste riots. A person could be detained for a maximum period of 12 months but a detenu could challenge the validity of his detention.

But every law passed in the name of public security and preserving the integrity of the country was misused by the power that be and thus badly criticised by the people.

It may, however, be mentioned again that the right to freedom of speach and expression can be restricted in the interest of sovereignty and integrity of India; the security of the state and certain other circumstances. The Assembly must be peaceful and without arms. The state can put reasonable restrictions in the interest of public order on the right to form association.

The citizen’s right to freedom is further guarded under Arts 20 to 22 of the constitution. Art 20 provides that no person shall be convicted to any offence for the violation of law in force at the time of commission of the Act charged as an offence. Art 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

Art 22 lays down that no person who has been arrested shall be detained in custody without being informed as soon as may be of the ground of such arrest. The Constitution, however, permits the state of the right to curb freedom under exceptional circumstances.

While discussing the role of the court and the detaining authority under Art 22 the Supreme Court of India has held that, “If an authority acts on relevant facts and arrives at decision which is neither irrational nor unreasonable, the order ‘is not bad and the court cannot substitute its decision in place of the decision of the authority.”

The same court has also held that the rights given by Art 22 (1) and (2) are absolute in themselves and do not depend on any other laws (State of M.P. Vs. Shobha Ram). AIR 1966 SC 1910 Para 28. Similarly the court has also ruled that, “The detention of a person must be due to same provision of law or of the constitution, it is opened to be challenged.” [AIR 1951 SC 301 (Para 4)].

10. Essay on the Right against Exploitation:

According to this right no person has a right to exploit any other person in any manner. Thus, traffic in human beings and beggar have been made legal offences and those found practicing are to be punished. Similarly slavery and traffic among women and children for immoral purposes has been declared an offence.

It has also been provided that no child below the age of 14 will be employed in mines or factories where risk to life is involved. There is, however, an exception to this rule which says that, “Nothing in this article shall prevent the state from imposing compulsory service for public purposes, and in imposing such service the state shall not make any discrimination on grounds only of religion, race, caste or class or any of them” Thus, compulsory service can be imposed in the collective interests of the community, if need be. By an Act of Parliament bonded labour has been abolished.

The Supreme Court of India has held that exaction of labour and services against the payment of less than minimum wages, amounts to forced labour and violates Art 23. The courts can direct payment of minimum wages.

11. Essay on the Right to Freedom of Religion:

Articles 25 to 28 of the constitution provide that there will be full freedom of conscience for all citizens of India. All shall have right to freely profess, practice and propagate religion of their choice and that the state shall not interfere in religious affairs of any individual in any manner.

All religions shall have a right to establish and maintain institutions for religious and charitable purposes. Similarly all will be free to manage their own affairs in matters of religion and charitable purposes.

The state shall not compel the individuals to pay taxes for promotion of any particular religion. It shall have no religion of its own and also shall not allow imparting of religious instructions in government institutions. But all these rights are subject to the condition that public order, morality and health will not be disturbed.

Thus, this right is not absolute and has been hedged with many conditions. Public morality and health have been given priority in this right.

The Supreme Court of India has ruled that it is a freedom which a person can claim for his personal exercise at will; it is not a freedom guaranteeing the preservation of graves where in bodies of some others he. It has also been held that right recognised by Art 25 (b) (2) must subject to limitation or protection given by Art 26 (b) Then it has also been held that wink deciding the question whether a given religious practice is an integral part of the religion or not the test always would be whether it is regarded as such by the community following the religion or nor.

12. Essay on the Cultural and Educational Rights:

These are important rights specially when viewed from the view point that education is considered most important for the success of democracy and democratic institutions. This right also assumes importance because every nation is very keen to preserve its cultural heritage. The right provides that all shall have a right to develop composite Indian culture but at the same time no culture or language will be imposed on any section of the society. All shall be free to develop culture of their choice and also be free to get the type of education they like.

The minorities will be absolutely free to preserve and develop their own culture and language. No citizen will be denied admission in any educational institution on account of his following a particular culture or belonging to a particular caste, creed or religion. All minorities, whether religious or lingual shall have the right to establish and administer educational institutions of their choice.

In granting aid to educational institutions the state shall not discriminate against any educational institution for its being a minority managed institution. The state shall not dictate the minorities about the nature of institutions they should have. It is required to be all impartial while extending financial aid and assistance to educational and cultural institutions.

Since the state will have no religion of its own, the minorities shall have full right to establish their own trusts and propagate their own religion. But the state shall interfere only when there is need for making regulations for the exercise of this freedom in the interests of public safety, peace, comfort or convenience or for the prevention of fraud.

The state can also take steps to eradicate such practices or dogmas which stand in the way of country’s progress as a whole without attacking basic principles of religion.

Under Article 29 of the constitution it is provided that no citizen of India shall be denied admission to any educational institution maintained or assisted by the state on ground of religion, race, caste or language. Similarly while giving aid the state shall not discrimate on the basis of religion.

The Supreme Court in the case of Ramji Lai Vs. the State of U.P. held that freedom of religion does not authorise deliberately doing anything which outrages the religious feelings of another class.

In the words of Dr. Dayal, “There is no fundamental right to convert another person to ones own religion under Article 25 (1) because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread principles of his religion that would impinge on the guaranteed freedom of conscience.”

The provisions of Article 26 (c) and (d) do not forbid the state from taking property belonging to religious denominations.

In the case of Narendra Vs. the State of Gujarat Supreme Court held that the right guaranteed by Article 26 is not absolute. It is subject to reasonable regulations by the state provided that the substance of the right is not effected.

In the case of D.A.V. College Bhatinda Vs. the State of Punjab the Supreme Court held that the right of minorities to establish and administer educational institutions of their choice would include the right to have choice of medium of instructions also which would be the result of reading Article 30(1) with Article 29(1).

Forty-Fourth Constitution Amendment Act provides that:

“In making any law providing for the compulsory acquisition of any property of any educational institution established and administered by a minority, referred to in clause (1), the state shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.”

The state is, however, fully competent to make laws which can help in promoting efficiency, morality and health as well as discipline of a minority run and managed institution.

Supreme Court of India has held that nothing should be done which would seek to run counter to the intentions of the founders of such institutions.

13. Essay on the Right to Constitutional Remedies:

No Fundamental Right can have any value or significance unless and until it has the force of law behind it. It is, therefore, essential that these rights should be above everything else.

The right implies that the citizens have a right to knock the doors of the courts of law, if they feel that any law of the legislature is against the letter or spirit of these rights or of a particular right and the courts are empowered to examine such requests. If necessary, these can also declare such laws as ultra vires of the constitution.

It has rightly been said that this Right is the heart and soul of the constitution and without it, all Rights will be meaningless. In order to enable the citizens to enjoy these Rights in a proper and right way the courts all over the country have been empowered to issue writs like the Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warrant Hebeas Corpus implies that no citizen should be detained without judicial authority and also without intimation of the grounds of detention.

In case the courts of law feel that the detention is unwarranted, it can issue directions for the release of detenu. Writ of Mandamus is utilised for public purposes and is issued by the courts of law when a specific request is made for the purpose.

It is a sort of specific relief Act. Prohibition writ forbids a person or institution from proceeding further in a particular case as it is feared that further proceedings will endanger natural ends of justice.

The object of issuing of this writ is to provide immediate relief to the sufferer. Certiorari is issued by the superior court to the lower court demanding records, etc., connected with a case pending before the court. Writ of Quo Warrant is issued to a person in authority finding out from him the authority under which he is holding office or is in power.

In the case of Gopal Das Vs. the Union of India, the Supreme Court held that no petition under Article 32 could lie if any person had been detained by a private individual. It is also provided that any petition under Article 32 could lie straight away in the Supreme Court without its passing through the High Court of any State.

In the case of Bhikaji Vs the State of Madhya Pradesh, the Supreme Court, however, held that a ground which was not specifically taken in the petition could not be taken at the time of hearing. It was also held by the same court that only a person whose Fundamental Rights had been violated could make a petition under Article 32 of the constitution.

Since the Right to Constitutional Remedies is in itself a Fundamental Right, therefore, the Supreme Court cannot refuse to entertain an application moved for seeking the enforcement of a Right and if any legislature attempts a legislation forbidding Supreme Court to entertain application under Article 32, such a law will be null and void.

Forty-Second Constitution Amendment Act inserted a new clause as 32 A in the Constitution.

By this Article, it was provided that:

“Notwithstanding anything in Art 32, the Supreme Court shall not consider the constitutional validity of any state law in any proceedings under the Article unless the constitutional validity of any central law is also an issue in such proceedings.”

Forty-Third Constitution Amendment Act, however, omitted it. It was also further provided that “(2) any proceedings pending before the Supreme Court under Art 32 of the Constitution immediately before the commencement of the Act may be dealt with by the Supreme Court as if the said Article 32 A had been omitted with effect on and from the 1st day of February, 1977.”

According to critics Fundamental Rights have been given to us by one hand and taken by the other. The main line of argument of these critics is that these rights are not absolute. They feel that conditioning of rights with duties has made these rights absolutely useless.

But constitution makers were aware of the disruptive tendencies and they could not afford to risk independence by granting and extending absolute rights to the citizens. P.B. Gajendragadkar is, however, of the view that the provision about constitutional remedies is a very distinguishing feature of our constitution.

14. Essay on the Parliament and Fundamental Rights:

About Fundamental Rights in India a great controversy which has arisen is whether the Rights or the Parliament is supreme. In other words whether the Fundamental Rights are sacrosant and cannot be touched or whether Parliament can just amend these, like any other constitutional provision.

In the case of Gokal Nath Vs. the State of Punjab in 1967, the Supreme Court held that the Parliament had no power to make any amendment in Part III of the Constitution or abridge any of the Fundamental Rights.

It thus became clear that in case any amendment was needed in Fundamental Rights as embodied in the constitution, a separate Constituent Assembly will have to be called for. This decision of the Supreme Court was quite unexpected and thus it was felt that the courts had done a great harm to the people and failed to face hard realities of life. In fact, it posed a challenge to the very concept of supremacy of Parliament.

This interpretation taken to its logical conclusions was bound to result in confrontation between the legislature and judiciary. While commenting on this judgment, M.C. Setalvad said, “As to the Gokal Nath the better opinion seems to be that the majority judgment viewed both from the legal as well as from the constitutional point of view is unsound.”

Then comes the case of Shantilal Mangaldas Vs. the State of Gujarat (1969) which gave some prestige to the Parliament but in the Bank Nationalisation case the Parliament again received a set-back, when the court ruled that the Act made hostile discrimination against 14 banks proposed to be nationalised.

In 1970, in Privy Purse case the Supreme Court struck down the order of the President in de-recognising the rulers enmasse. The court also held that Privy Purse was just like property and thus a Fundamental Right covered under Articles 19 and 31 of the constitution. The supremacy of the Parliament was established in what is commonly known as Kesvananda Bharti case.

Constitution Forty-Second Amendment Act fully well established that the Parliament was competent beyond any doubt to amend Fundamental Rights.

Article 368 of the Constitution was thus amended by Forty-Second Constitution Amendment Article.

“(4) No amendment of this Constitution (including Provisions of Part (iii) made or purporting to have been made under this Article [whether before or after the commencement of Section 55 of the Constitution (Forty-Second Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this constitution under this article.”

This amendment was, however held un constitutional in Minerva Mills Ltd. Vs. The Union of India (1980) 35 see 625. The Supreme Court, however, held that the Parliament could not amend constitution in this way debarring courts from adjudging constitutional validity of any Act or part of the constitution.

It also said that the Parliament had not got unlimited rights of amendment of the Constitution. This again started a controversy about the supremacy of judiciary and legislature.

Now a question arises whether the Parliament should or should not have absolute power to amend Part III of the Constitution dealing with Fundamental Rights. Those who favour the idea argue that Parliament represents the will of the people and as such it should have absolute right to amend every Article of the constitution, including Articles dealing with Fundamental Rights.

It is also said that Constituent Assembly which approved and gave these rights to the people was not a representative body.

Its members were never elected by the people, whereas Parliament is a representative body. Thus, how can the wishes of a non-elected body be superior to an elected body.

They also argue that Supreme Court should also have no over-riding power, because the judges are not the elected representatives of the people, whereas each member of Parliament represents a constituency consisting of lakhs of people. They argue that it was never the intention of constitution makers that the judiciary should become third House of our legislature.

On the other hand, there are others who believe that the Parliament should not have right to amend Fundamental Rights. According to them these Rights are in the nature of natural rights and should not be touched by the Parliament. The framers of the constitution themselves made it clear that these Rights were inviolable.

Moreover, it is said in a Parliamentary democracy, as we have in India, governments are only party governments. In case Parliament is given absolute right to amend constitution there is every chance that party rather than national interests may be kept in mind while amending a part of the constitution. Even otherwise many laws passed by the Parliament are disliked and disapproved by the people.

Then it is also said that the people of India gave this constitution to themselves and while doing so they also reserved Fundamental Rights with themselves. They had no intention that these should at any stage be taken away from them. They also argue that like several other provisions of the constitution an absolute right to amend Fundamental Rights can be misused.

Whereas Parliament should not be given right to easily amend Part III of the constitution, complete denial of power to amend this Part of the constitution can also create many complications and create a lag which may not be in the national interest.

Thus, a via media can be the best solution, i.e., some circumstances may be stipulated under which Parliament may be empowered to amend this Part of the constitution with certain restrictions and not otherwise. The basic principle should always be that the scope of the Rights is in no way reduced.