INTRODUCTION
09 May 2021

The Simon Commission and the Joint Parliamentary committee, which were responsible for the Government of India Act, 1935 (the main source of Indian Constitution), had rejected the idea of declaration of fundamental rights on the ground that “abstract declarations are useless, unless there exist the will and the means to make them effective”.

Regardless of the British opinion, the makers of our Constitution adopted Fundamental Rights to safeguard individual liberty. And if combined with DPSP, provide social, economic and political justice for every member of the society.

They were of the opinion that democracy is meaningless without fundamental rights.

Also Read | Right to Freedom | Right to Equality

Classification of Fundamental Rights

In original constitution there were 7 Fundamental Rights:

a)    Right to Equality (Article 14-18)

b)    Right to Freedom (Article 19-22)

c)    Right against Exploitation (Article 23-24)

d)    Right to Freedom of religion (Article 25-28)

e)    Cultural and Educational Rights (Article 29-30)

f)     Right to Property (Article 31)

  (Abolished by 44^th Amendment Act, 1978, by Janta Party Government, now it is a legal right under Article 300A)

g)    Right to Constitutional Remedy (Article 32)

 

Right to Education (Article 21A)

• (6 Years to 14 Years)
• (Added by 86^th Amendment Act, 2002 by BJP (NDA), Implemented with effect from 1^st April 2010 (UPA))
• An extra 3% tax was taken to called fund to implement the scheme (cess 2%-Primary Education, 1%-Higher Education)
• In Unnikrishna Case, Supreme Court says Right to Education is a Fundamental Right

Significance of Fundamental Rights

Why Fundamental Right is called FUNDAMENTAL

Fundamental Right is called Fundamental because it is most important pride for and wholistic development of personality of the individual. It is also called as fundamental because a person can directly move to Supreme Court in case of its violation.

Significance of Fundamental Rights

Fundamental Rights are individual rights and without them democracy is meaningless, Fundamental Rights cannot be violated under all circumstances. A society cannot develop or proper effectively without Fundamental Rights. Fundamental Rights are given to the individuals mostly against the state because state is supported to be the biggest violator of individual rights. However, same of the articles has been designed to protect the individuals not only from the state but also from other individuals these are –

• ARTICLE 15 – Prohibition of discrimination on the ground of religion, race, caste, sex, region of birth.
• ARTICLE 17 – Abolition of untouchability.
• ARTICLE 23 – Prohibition of traffic in human beings and forced labour.
• ARTICLE 24 – Prohibition of employment of children below the age of 14 years in hazardous job.

Absolute in Nature

Fundamental Rights are not absolute rights, these are restricted rights. Supreme Court in A.K. Gopalan v/s State of Madras case (1950), said that there cannot be any such thing as absolute or uncontrolled liberty only freed from restraints as it may lead to anarchy and disorder.

The purpose of Fundamental Right is to establish rule of law. On the other hand, if state is given absolute power over the individual, the result would tyranny or state terror. Therefore, there shall be a balance between individual liberty and social needs.

As a result, parliament is empowered to impose reasonable restrictions on Fundamental Rights, Following are the grounds for reasonable restrictions on Fundamental Rights –

1. In the interest of Schedule Caste (SC’s/ST’s) and other weaker sections of the society including women and children.
2. Public order, decency and morality contempt of court, defamation.
3. Sovereignty and integrity of India.
4. Security of the state.
5. Friendly relations with foreign state.
6. However, the following 2 articles are exceptions that is, these are absolute in nature and having no reasonable restrictions on it.
• Article 17 – Abolition of Untouchability.
• Article 24 – Children below the age of 14 years can’t be employed in any hazardous job.

Article 12

ARTICLE 12 – Definition of States

According to this Article the term state includes:

1. The Government and Parliament of India.
2. The Government and Legislature of the states.
3. All local and other authorities, within the territory of India or under the control of Government of India.

Local authorities mean – Panchayat, Municipalities, District Courts, Improvement trusts etc.

However, the term ‘other authorities’ create some problem in interpretation, the Supreme Court said that other authorities means those authorities or body created by the Constitution or by statue and power is conferred on them, such as LIC, GIC, Rajasthan Electricity Board, DDA, RBI, SEBI, IOC, ONGC, HP, SAIL, GAIL, BHEL etc. are state.

The Supreme Court further say that any instrument or agency of the state is a state i.e., Individual Policemen.

Article 13

Article 13 – Definition of Law

The main purpose of Article 13 is to establish paramountcy of Fundamental Rights over Laws.

Article 13 (1): Says that any pre-constituted law can be declared as null and void, to the extent of its inconsistency with Fundamental Right.

Article 13 (2): Is related to Post-Constitutional law says that if any law made by the Legislature violates Fundamental Rights, then to the extent of such violation the law shall be declared as null and void.

Article 13 (3): Define the ambit of Law, which includes-

• Any temporary law such as ordnances, acts as well as any permanent law.
• Rules and regulations, order by laws, notification having in the territory of India the force of law.
• Any customs or its uses having in the territory of India, the force of law.