FUNDAMENTAL RIGHTS DPSP
FUNDAMENTAL RIGHTS DPSP
FUNDAMENTAL RIGHTS DPSP
Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the
framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights). Part III of
the Constitution is rightly described as the Magna Carta of India. It contains a very long and
comprehensive list of ‘justiciable’ Fundamental Rights. These rights are characterised by certain features
which may be as follows:
Out of these, “Right to property” has been deleted by 44th constitutional amendment (1978) and
consequently it is not a fundamental right now. A separate Article 31-A has been added to the
constitution to protect it as a constitutional right.
Right to Equality
The Right to Equality guaranteed by Articles 14 to 18 has two important elements:
(a) It subscribes to the ideal of equality of all human beings
(b) It also recognises that certain conditions viz a person’s caste, restrict equality in real life.
It implies that equality should not be merely formal but adequate and positive steps
should be taken by the state to make it substantive.
Article 14 declares that “the state shall not deny to any person equality before the law or equal
protection of laws within the territory of India”. ‘Equality before law’ is an expression of English common
law, while ‘equal protection of laws’ owes to the American Constitution.
‘Equality before law’ is a negative concept implying the absence of any special privilege in favour of any
individual. Equal protection of laws is a positive concept, implying equality of treatment in equal
circumstances. It is the second corollary of Dicey’s concept of the ‘Rule of law’. It means that no man is
above the law of the land and that every person is subject to ordinary law. But certain exceptions are
recognised to the above rule of equality in the public interests e.g., the exercise and performances of the
power and duties of the President of India or governors of states.
‘Equal protection of laws’ is borrowed from the American constitution .It means the right to equal
treatment in similar circumstances both in the privileges conformed and in the liabilities imposed by the
laws.
Article 15 assures that 'the State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth'.
Article 16 guarantees 'equality of opportunity in matters of public employment'. It assures a formal
equality of status among individuals. The only exceptions to the above rule of equality are:
In order to make this formal status effective, the articles carry clauses which aim at erasing
inequalities which are brought about by circumstances of caste, gender, religion etc. Thus,
Clause 3 in Article 15 reserves for the State the discretion to provide special provisions for
women and children. Clause 4 added by the Constitution (First Amendment)
Residence within the state may be laid down by parliament as a condition for particular classes
of employment;
The state may reserve any post of appointment in favour of any backward class of citizens, who
are not adequately represented in the services under the state.
Act, 1951 authorises the state to make special provisions for the advancement 'of the socially and
educationally backward classes of citizens, i.e., for the Scheduled Castes and Scheduled Tribes.
Article 17 abolishes 'untouchability', and forbids its practice in any form. The Untouchability (Offences)
Act 1955 and its later form, Protection of Civil Rights Act, 1976, are the parliamentary laws which have
sought to give effect to this principle in the Constitution.
Article 18 prohibits the state to confer titles on anybody, whether Indian or alien. Military and academic
distinctions are exempted from this prohibition. In 1954, the Government of India introduced decorations
of four categories, namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri. These
awards are mere state recognitions of good work by citizens in various fields of activity. There was a
vehement criticism from some quarters that the introduction of these awards violates Article 18.
RIGHT TO FREEDOM
The Right to Freedom constituted by Articles 19 gives six basic freedoms:
(a) freedom of speech and expression;
(b) freedom to assemble peaceably and without arms;
(c) freedom to form associations or unions;
(d) freedom to move freely throughout the territory of India;
(e) freedom to reside and settle in any part of the territory of India; and
(f) Freedom to practice any profession, or carry on any occupation, trade or business.
Clauses 2 to 6 of the Article subject these freedoms to 'reasonable restrictions' by the state. The state is
thus empowered to restrict these freedoms in the interest of the 'sovereignty and integrity of India',
'security of the state', 'public order', and 'general interest of the public'.
Articles 20, 21 and 22 give to citizens 'protection in respect of conviction of offences', 'protection of life
and personal liberty' and 'protection against arrests and detention in certain cases', respectively.
Article 22 provides for certain 'protections' or rights of the arrested or detained persons viz., right to be
informed of the grounds of arrest, right to consult and be defended by a lawyer, right to be presented
before a magistrate within 24 hours etc. These rights are, however, withheld from 'enemy aliens' and
persons who are 'arrested or detained under any law providing for preventive detention' [Article 22,
Clause 3(b)]. It is thus ironical that the fundamental right to freedom carries within itself the conditions
under which it can be dismantled. The history of the numerous laws of Preventive Detention in India from
the Maintenance of Internal Security Act (MISA, 1971) through National Security Act (NSA, 1980) and
Terrorist and Disruptive Activities (prevention) Act (TADA, 1985), has shown that more often than not
these laws have been used by the ruling powers indiscriminately. Often they have been used to quell
political opposition and for purposes other than those stated as the objects of the Acts.
Article 23 is significant since it protects the right of children below 14 years against employment in
factories, mines or other hazardous workplaces. It is important to point out again that despite these
Constitutional provisions, exploitation of child labour in life-threatening and debilitating conditions, like
fireworks industry and carpet making industry, continues unabated.
Further, the parliament may by law, empower any other court to exercise all or any of the powers
exercisable by the Supreme Court without prejudice to the powers of the Supreme Court. The right to
constitutional remedies may be suspended as provided by the Constitution under Articles353 and 359.
The importance of this Article 32 was quite realized in the Constituent Assembly, and majority of the
members agreed that, “it is the very soul of the Constitution and the very heart of it”
a) Habeas Corpus
The term literally means, “You may have the body” In India the power to issue a writ of Habeas Corpus
is vested only in the Supreme Court and the High Courts. It is issued in the nature of an order calling upon
the person who has detained another to produce the latter before the court to let the court know on
what ground he has been confined and to set him free if there is no legal justification for the
imprisonment.
b) Mandamus
It literally means ‘command’. The writ of mandamus is an order of the High Court or the Supreme Court
commanding a person or a body to do that which is his, or its, duty to do. Usually it is an order directing
the performance of ministerial acts. A ministerial act is one which a person or body obliged by law to
perform under given circumstances.
c) Prohibition
Prohibition is a writ issued by the Supreme Court or High court to an inferior court forbidding the latter to
continue proceedings therein in excess of its jurisdictions or to usurp a jurisdiction with which it is not
legally vested. The object of the writ is to compel inferior courts to keep themselves within the limits of
their jurisdiction.
d) Certiorari
It is a prerogative writ which orders the removal of a suit from an inferior court to a superior court. It
may be used before trial to prevent an excess or abuse of jurisdiction and to remove the case for trial to a
higher court.
Prohibition and certiorari are both issued against courts or tribunals exercising judicial or quasi-
judicial powers. Certiorari is issued to quash the order or decision of the tribunal, while prohibition is
used to prohibit the tribunal from making the ultra vires order or decision. While prohibition is available
at an earlier stage, certiorari is available at a later stage, on similar grounds.
e) Quo warranto
It is a proceeding whereby the court enquires in to the legality of the claim which a party assents to a
public office and to oust him from its enjoyment if the claim be not well founded. The fundamental basis
of the proceeding of quo warranto is that the public has an interest to see that an unlawful claimant
does not usurp a public office. Article 32 provides a guaranteed remedy for the enforcement of
fundamental rights and this remedial right is itself made fundamental by being included in Part III. The
court is, constituted the protector and guarantor of the fundamental rights. The Indian Constitution by
providing this right that is, by making that remedial right itself a guaranteed fundamental right has gone
a step further than most of the constitutions of the world.
Articles 36 to 51 in Part IV of the Constitution constitute the Directive Principles of State Policy. The
Directive Principles are different from Fundamental Rights in the sense that they are not 'enforceable' by
any Court (Article 37). The Directive Principles are addressed to the State and do not automatically vest
in the citizens as a matter of right. They are (Article 37), 'fundamental in the governance of the country'
and the state is expected to 'apply these principles in making laws'.
The Directive Principles envisage an active role of the State in providing a range of socially ameliorative
or welfare rights. These include access to an adequate means of livelihood, equal pay for equal work,
health and strength of workers, living wage for workers, provision of just and humane conditions of
work, right to work, to education, to public assistance, to equal justice and free legal aid, to adequate
nutrition and health etc.
Article 36 Defines State as same as Article 12 unless the context otherwise defines.
Article 37 Application of the Principles contained in this part.
Article 38 It authorizes the state to secure a social order for the promotion of the welfare
Article 39 Certain principles of policies to be followed by the state.
Article 39A Equal justice and free legal aid.
Article 40 Organization of village panchayats.
Article 41 Right to work, to education and to public assistance in certain cases.
Article 42 Provision for just and humane conditions of work and maternity leaves.
Article 43 Living wage etc. for workers.
Article 43-A Participation of workers in management of industries.
Article 43-B Promotion of cooperative societies.
Article 44 Uniform civil code for the citizens.
Article 45 Provision for early childhood care and education to children below the age of six
Article 46 Promotion of education and economic interests of SC, ST, and other weaker
Article 47 Duty of the state to raise the level of nutrition and the standard of living and
Article 48 Organization of agriculture and animal husbandry.
Article 48-A Protection and improvement of environment and safeguarding of forests and
Article 49 Protection of monuments and places and objects of national importance.
Article 50 Separation of judiciary from the executive.
Article 51 Promotion of international peace and security.
CRITICISM
The Directives have been criticised mainly because of their non-justiciable character. The courts
of India have no power to enforce them. The DPs have been described by K.C.Wheare as a
“manifesto of aims and aspirations”.
Critics opine that the Directives are not arranged in a logical manner based on a consistent
philosophy. According to Sir Ivor Jennings ‘Part IV of the Constitution expresses Fabian Socialism
without the socialism’.
Ivor Jennings has expressed that fundamental rights as well as DPs are “based on no consistent
philosophy” According to Sreenivasan, the formulation of the directives of the state policy can
hardly be considered inspiring. It is both vague and repetitive.
K Santhanam has pointed out that the Directives lead to a constitutional conflict
(a) between the Centre and the states,
(b) between the President and the Prime Minister, and
(c) Between the governor and the chief minister.
Just because of the DPs are not legally enforceable it would be rather cynical to say that, they are no
more than “a parade of high sounding sentiments couched in vain glorious verbiage”. Nevertheless, their
incorporation in the constitution has been justified by a consensus of opinion, as well as the working of
the constitution since 1950.The real importance of DPs is that they contain the positive obligations of the
state towards its citizens. If the fundamental rights guarantee a political democracy in India, the
directive principles ensure the eventual emergence of an economic democracy, to sustain the former.
FUNDAMENTAL DUTIES
Gandhiji attach far greater importance to duties than rights. Rights are the opportunity for self-
realization. The way to self -realization is the realization of one’s spiritual unity with others. Thus every
right is the right to do one’s duty. To quote Gandhiji “....the right to perform one’s duties is the only right
that worth living for and dying for. It covers all legitimate rights”.
D.D.Vasu is of the view that, “ the legal utility of the fundamental duties is similar to that of the
Directives as they stood in the Constitution of 1950, while the directives were addressed to the state
without any sanction, so are the duties addressed to the citizens ,without any legal sanction for their
violation.”
The underlying principle of Fundamental Duties appears to be that the individual exercising their must
respect the rights of other members of the community. Although there are no provisions in the
Constitution for their enforcement, any law seeking to prohibit the violation of Fundamental Duties, can
be upheld by the Courts, even if the law restricts a Fundamental Right.
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