Fundamental rights are those rights which are essential for intellectual, moral and spiritual development of citizens of India. As these rights are fundamental or essential for existence and all-round development of individuals, hence, they are called ‘Fundamental rights’. These are enshrined in Part III (Articles 12 to 35) of the Constitution of India.
Right to freedom
The Constitution of India contains the right to freedom, given in articles 19, 20, 21A, and 22, and with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. It is a cluster of four main laws. The right to freedom in Article 19 guarantees the following six freedoms:
Freedom of speech and expression, on which the State can impose reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Freedom to assemble peacefully without arms on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.Freedom to form associations or unions or co-operative societies on which the State can impose reasonable restrictions in the interest of public order, morality and the sovereignty and integrity of India.
Citizens have the freedom to move freely throughout India, although reasonable restrictions can be imposed on this right in the public’s interest. For example, to control an epidemic, restrictions on movement and travel can be imposed.Freedom to reside and settle in any part of the territory of India, subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion. Article 370 restricted citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir. Article 370 is no longer applicable in the state of Jammu & Kashmir from 6 August 2019.
Freedom to practice any profession or to carry on any occupation, trade or business. But the state may impose reasonable restrictions in the public’s interest through statute. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practising any profession or carrying on any trade.
Article 20 gives protection in respect of conviction for offences.
- Article 21 gives the right to life, personal liberty and the right to die with dignity (passive euthanasia).
- Article 21A gives free education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
- Article 22: Protection against arrest and detention in certain cases.
The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency.
Courts in India have mandated that some of these rights are applicable to nonhuman entities which have been given the status of the “legal person” and humans have the legal duty to act as “loco parentis” towards animals welfare like a parent has towards the minor children (Punjab and Haryana High Court in 2018 cow-smuggling case), a deity as a legal person is entitled to the rights (Supreme Court in 2018 entry of women to Sabarimala granted Lord Ayyappan right to privacy), rivers are legal person (Uttarakhand High Court mandated that the river Ganges and Yamuna have right to be protected against pollution caused by humans).
Right to life
The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:
Protection with respect to a conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself.
Compulsion in this article refers to what in law is called duress (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self-incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo-Saxon law. This principle was first established in the Magna Carta.
Protection of life and personal liberty is also stated under the right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person’s life and personal liberty can be disputed only if that person has committed a crime. However, the right to life does not include the right to die and hence, suicide or any attempt thereof, was an offence. (Attempted suicide being interpreted as a crime has seen many debates.
The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year. In 1996, another Supreme Court ruling nullified the earlier one. But with the passage of the Mental Healthcare Bill 2017, attempted suicide has been decriminalised.”Personal liberty” includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under “personal liberty” in Article 21.
In 2002, through the 86th Amendment Act, Article 21A was incorporated. It made the right to primary education part of the right to freedom, stating that the state would provide free and compulsory education to children from six to fourteen years of age.Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008.
Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also, an arrested citizen has to be brought before the nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.
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