FUNDAMENTAL RIGHTS AND DUTIES Rights and duties Rights

FUNDAMENTAL RIGHTS AND DUTIES

Rights and duties • Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. • These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender. • The fundamental duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. • Rights and duties are two wheels on which the chariot of life moves forward smoothly. Life can become smoother if rights and duties go hand in hand become complementary to each other.

What are fundamental rights? Fundamental rights guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizen of India. These rights are fundamental because of two reasons. 1. These are mentioned in the Constitution which guarantees them 2. These are justiciable, i. e. enforceable through courts. Anyone guilty of non-compliance to such fundamental rights will be punished as per the Indian penal code. The part III of the constitution of India gives a detailed description on charter of rights called the ‘fundamental rights’.

Fundamental Rights Article 12 {Definition} The Term "the State" includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 13 {Laws inconsistent with the fundamental rights} All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. In this article, unless the context otherwise required, "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. Nothing in this article shall apply to any amendment of this Constitution made under article 368.

FUNDAMENTAL RIGHTS AND DUTIESC IN INDIA There are fundamental rights documented by the constitution of India such as Ø Right to equality(Art 14 -18). Ø Right to freedom & information(Art 19 -22). Ø Right to Education(Art 21 A) Ø Right against exploitation. (Art 23 -24) Ø Right to freedom of religion. (Art 25 -28) Ø Cultural and Educational rights(Art 29 -30) Ø Right to Property(Art-31) has been deleted in 1976 undert 42 nd Amendment Ø Right to constitutional remedies(Art 32)

RIGHT TO EQUALITY Foremost among the fundamental rights guaranteed by the constitution of India is the right to equality. Articles 14 -18, state and elaborate the Right to Equality in India. Article 14 : - Equality before law and equal protection of laws. Article 15 : - Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth. Article 16 : - Equality of opportunity in matters of public employment Article 17 : - End of untouchability Article 18 : - Abolition of titles, Military and academic distinctions are, however, exempted.

Equality before laws and equal protection of laws (article 14) Equality Before Law: It ensures that every citizen shall be likewise protected by the laws of the country. The State will not distinguish any of the Indian citizens on the basis of their gender, caste, creed, religion or even the place of birth. “equality before the law” implies that all are equal in the eyes of law and all will be tried by the same law and will be given the same punishment for same crime.

The constitution stipulates some exceptions: The President of India or the Governor of a State is not answerable to any court for his official actions. The President or the Governor is not subject to criminal prosecution during his term of office. Civil suits claiming relief for personal actions cannot be brought against the President or, a Governor when in office.

Equal protection of laws: It implies equality of treatment in equal circumstances both in privileges conferred and liabilities imposed. So all the persons must be treated alike on reasonable classification. . This allows the Parliament to classify persons for the purpose of taxation. The classification should be reasonable. The state may also make some exceptions. Equal protection thus ensures equal treatment in equal circumstances and differing treatment in differing circumstances.

Social Equality and Equal Access to Public Areas (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) The State can make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (5) The State can make any special provision, by law, for the advancement of any socially and educationally backward classes in so far as such special provisions relate to their admission to educational institutions including private educational institutions.

Equality in Matters of Public Employment There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. These are some exceptions to prohibition of discrimination under Art. 16. (I) The state may reserve some appointments for backward classes Offices in the religious institutions may be kept reserved for the followers of the religion concerned. Posts in the state services may be kept reserved for the scheduled castes and tribes. Finally Art. 16 forbid discrimination in matters of state employment only on the grounds stated in the article itself.

Abolition of Untouchability and titles Article 17 of the Constitution of India abolishes the practice of untouchability in India. Practice of untouchability is declared as a crime and anyone doing so is punishable by law. Article 18 of the Constitution of India prohibits the State from granting any titles. Citizens of India are not allowed to accept titles from a foreign State. However honors conferred by the government of India such as Bharat Ratna or Padmashri etc. are not titles but are only recognition of meritorious services.

Right to Freedom Article 19 to 22

Right to Freedom Ø Freedom of speech and expression Article-19 � Right to information is linked to the freedom of speech and expression granted in Article 19 in the constitution. Freedom to assemble peacefully without Arms. q q Freedom to form associations and unions. q Freedom to move freely throughout the territory of India. q Freedom to reside and settle in any part of the territory of India. (exception J & K) q Freedom to practise any profession or to carry on any occupation, trade or business. q Right to information for citizens" under Freedom of information Act, 2002. (except Jammu and Kashmir ) Ø Protection in respect of conviction of an offence Article-20 Protection of life, Education and personal liberty Article-21 & Article-21 A Ø Protection against arrest and detention against certain cases Article-22 Ø Freedom of Press – Article-361 A has been inserted according to which the press has Ø been given the power to publish an account of the proceedings of the Indian Parliament and states legislatures.

Right against Exploitation Article 23 -24

Right against exploitation, Article 23 -24 Ø Prohibition of traffic in human beings and forced labour Article 23: This article prohibits the traffic in human beings and forced labour. § Prohibition of compulsary services Article 23 : under this article the state can force people to do compulsory service for public purposes. Ø Prohibition of Child Labour Article-24: Children below the age of forteen years will not be allowed to work in factories, mines or in other dangerous places so that their health is not adversely affected.

Right to Religious Freedom Article 25 to 28

Right to religious freedom, Article-25 to 28 Ø Freedom to profess and propagate any religion, Article-25 Ø Freedom to manage religious affairs, Artcle-26 Ø Freedom not to pay taxes for the promotion of any particular religion, Article-27 Ø No religious instructions in government educational institutions, Artcle-28(1) Ø In private/minority educational institutions religious education not against the will, Article-28(3)

Cultural and educational rights Article 29 to 30

Cultural and educational rights, Article 29 to 30 Ø Protection against interest of minorities, Article-29(1) Ø Freedom to get admission in educational institutions, Article-29(2) Ø Right to minorities to establish educational institutions, Article-30(1) Ø No discrimination while giving grants-Article-30(2)

Right to Constitutional Remedies. Article-32

RIGHT TO CONSTITUTIONAL REMEDIES (article 32 -35) Mere declaration of fundamental rights is meaningless until and unless there is a machinery for its enforcement. Article 32 which was referred to “as the very soul of the constitution” by Dr. Ambedkar, provides for constitutional remedies. This right empowers the citizens to move a court of law in case of any denial of the fundamental rights. The Supreme Court shall have the power to issue directions or order or writs for the enforcement of any of the rights conferred by fundamental rights.

Right to constitutional remedies, Article-32 Ø Article-31(1), provides that a citizen can approach the supreme court of India by due process of law for the implementation of the Fundamental Rights included in Chapter 3 of the constitution. Ø Article-32(2), the Supreme court of India has the right to issue writs in the nature of the Ø Habeas Corpus: A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order with in 24 hrs of his arrest. Ø Mandamus: A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. Ø Prohibition : Ø Certiorari: Ø Quo warranto: Ø Article-32(3), The Indian Parliament can empower any court to issue notice within its jurisdiction without infringing or influencing the powers of the Supreme Court of India. Ø Article-32(4), the state cannot suspend the right to constitutional remedies except in cases provided in the Indian Constitution.

Habeas Corpus: Habeas Corpus literally means ‘to have the body of’. Via this writ, the court can cause any person who has been detained or imprisoned to be physically brought before the court. The court then examines the reason of his detention and if there is no legal justification of his detention, he can be set free. Such a writ can be issued in following example cases: When the person is detained and not produced before the magistrate within 24 hours When the person is arrested without any violation of a law. When a person is arrested under a law which is unconstitutional When detention is done to harm the person or is malafide. Thus, Habeas corpus writ is called bulwark of individual liberty against arbitrary detention. A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals.

Mandamus: Mandamus means “we command”. This writ is a command issued by court to a public official, public body, corporation, inferior court, tribunal or government asking them to perform their duties which they have refused to perform. Due to this, Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus demands an activity and sets the authority in action. Mandamus cannot be issued against the following: a private individual or private body. if the duty in question is discretionary and not mandatory. against president or governors of state against a working chief justice to enforce some kind of private contract. A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body.

Prohibition: The writ of ‘prohibition’ means that the Supreme Court and High Courts may prohibit the lower courts such as special tribunals, magistrates, commissions, and other judiciary officers who are doing something which exceeds to their jurisdiction or acting contrary to the rule of natural justice. For example if a judicial officer has personal interest in a case, it may hamper the decision and the course of natural justice. Difference between Mandamus and Prohibition While Mandamus directs activity, Prohibition directs inactivity. While Mandamus can be issued against any public official, public body, corporation, inferior court, tribunal or government; prohibition can be issued only against judicial and quasi-judicial authorities and NOT against administrative authorities, legislative bodies

Certiorari: Certiorari means to “certify”. It’s a writ that orders to move a suit from an inferior court to superior court. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with that to itself or squash its order. This is generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law. Thus, certiorari is a kind of curative writ

Quo warranto: Quo warranto means “by what warrant”? This writ is issued to enquire into legality of the claim of a person or public office. It restrains the person or authority to act in an office which he / she is not entitled to; and thus stops usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices.

Fundamental Rights Article 33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. - Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to: (a) The members of the Armed Forces; or (b) The members of the Forces charged with the maintenance of public order; or (c) Persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) Persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Fundamental Rights Article 34. Restriction on rights conferred by this Part while martial law is in force in any area. - Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

Fundamental Rights Article 35. Legislation to give effect to the provisions of this Part. Notwithstanding anything in this Constitution, (a) Parliament shall have, and the Legislature of a State shall not have, power to make laws(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and (ii) for prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii) (b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in subclause (i) of clause (a) or providing for punishment for any act referred to in subclause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372,

FUNDAMENTAL DUTIES (Article 51 A) Added to the Constitution by the 42 nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee. These duties set in part IV-A of the Constitution of India. They are not legally enforceable. They are held by the Supreme Court to be obligatory for all citizens. Originally ten in number, the Fundamental Duties were increased to eleven by the 86 th Amendment in 2002.

THE DUTIES: The exact duties of every citizen of India according to the Constitution are: 1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. 2. To cherish and follow the noble ideals which inspired our national struggle for freedom. 3. To uphold and protect the sovereignty, unity and integrity of India. 4. To defend the country and render national service when called upon to do so. 5. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.

6. To value and preserve the rich heritage of our composite culture. 7. To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. 8. To develop the scientific temper, humanism and the spirit of inquiry and reform. 9. To safeguard public property and to abjure violence. 10. To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement. 11. Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

Significance of fundamental duties They serve as a reminder to perform specific duties towards society and warning to citizens against anti social activities. They serve as a warning against the anti-national and antisocial activities like burning the national flag, destroying public property and so on. They serve as a source of inspiration for the citizens and promote a sense of discipline and commitment among them. They create a feeling that the citizens are no mere spectators but active participants in the realization of national goals. If the court finds that a law in question seeks to give effect to a fundamental duty, it may consider such law to be reasonable

Difference between fundamental rights and duties FUNDAMENTAL RIGHTS Fundamental Right applies to both citizens & foreigners Fundamental Rights are justiciable in nature i. e. they can be taken to court of law if they are not followed. Fundamental Rights are legal sanction & direct enforcement. But Parliament can Suspend its if these are not warranted through proper legislation. Fundamental Rights have impact on the government. Rights are what we want others to do for us. FUNDAMENTAL DUTIES Ø Fundamental duties apply only to citizens. Ø Fundamental duties are non-justiciable in nature i. e. they can’t be taken to court of law if they are not followed. Ø Fundamental duties lack legal sanction & direct enforcement. But Parliament can enforce it if it wants via proper legislation. Ø Fundamental Duties have impact on the Citizens. Ø The duties are those acts which we should perform for others.

Directive Principles of State Policy Part IV (Article 36 -51).

. Part IV (Article 36 -51) Deals with various Directive Principles of State Policy.

History • The concept of Directive Principles of State Policy was borrowed from the Irish Constitution. • The makers of the Constitution of India were influenced by the Irish nationalist movement. • The principles have been inspired by the Directive Principles given in the Constitution of Ireland also by the principles of Gandhism; and relate to social justice, economic welfare, foreign policy, and legal and administrative matters.

Definition The Directive Principles of State Policy are guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country.

Characteristics ØDPSPs aim to§create social and economic conditions under which the citizens can lead a good life. §establish social and economic democracy through a welfare state. ØThey act as a, yardstick in the hands of the people to measure the performance of the government. ØThe Directive Principles are non-justiciable rights of the people. ØThe Directive Principles, though not justiciable, are fundamental in the governance of the country.

DIRECTIVEs…. Article 36: Definition of state: “The State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 37: The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Article 38: State to secure a social order for the promotion of welfare of the people (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Article 39 : Certain principles of policy to be followed by the State The State shall, in particular, direct its policy towards securing – (a) that the citizen, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment

Article 39 A: Equal justice and free legal aid The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. - to citizens having economic or other disabilities. Article 40: Organisation of village panchayats The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Article 41: Right to work, to education and to public assistance in certain cases The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 42 : Provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief.

Contd… Article 43 : Living wage, etc. , for workers The State shall endeavor to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. Article 43 A : Participation of workers in management of industries The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry.

Article 44 : Uniform civil code for the citizen The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Article 45 : Provision for free and compulsory education for children The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. Article 46 : Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Article 47 : Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health. Article 48 : Organization of agriculture and animal husbandry The State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Article 48 A : Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Article 49 : Protection of monuments and places and objects of national importance It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. Article 50 : Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State. Article 51 : Promotion of international peace and security The State shall endeavour to – (a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and (d) encourage settlement of international disputes by arbitration.

Implementation of DPSPs through… v. Land Reform Acts. v. Banking policy. v. Fixation minimum wages for employees engaged in various employments. v. Welfare schemes for the weaker sections. v. Nuclear disarmament. v. Panchayati Raj. v. The Equal Remuneration Act of 1976. v. Consumer Protection Act of 1986. v. The 86 th constitutional amendment of 2002 inserted a new article, Article 21 -A

Amendments to DPSPs An amendment requires the approval of two-thirds of the members present and voting. Major amendments ØArticle 31 -C, inserted into the Directive Principles of State Policy by the 25 th Amendment Act of 1971 seeks to upgrade the DPSPs. ØArticle 48 -A, which ensures Protection and improvement of environment and safeguarding of forests and wild life, was added by the 42 nd Amendment Act, 1976. ØArticle 45, which ensures Provision for free and compulsory education for children, was added by the 86 th Amendment Act, 2002.

Conclusion DPSPs are- non-justiciable rights of the people. guidelines to the central and state govts of India. not enforceable by any court. considered fundamental in the governance of the country. It the duty of the State to apply these principles in making laws to establish a just society in the country. In fact, it is the duty of the State to be kept in mind of DPSPs, while framing laws and policies to establish a just society in the country.

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