Abstract:
This paper aims to look into the roles of Fundamental Rights and what changes we need to put so that the rights are received by everyone in the society. Fundamental Rights are the basic human rights that everyone deserves, basic rights like living in a clean environment, not being discriminated, peaceful life with dignity, respect and rights not being taken away by anyone. This paper takes into consideration the Constitution of India which provides us with our fundamental rights and their limitations. In this paper our research focus is, what are the roles fundamental rights play in the society and does every individual out there receive fundamental rights. For this paper, all basic questions have been taken into consideration and government websites have been referred. At the end of this paper, a brief conclusion has been mentioned where the personal opinion of the author is being discussed.
Introduction:
Our Constitution is based on certain fundamental values which provides us with basic structure of our Constitution. The aims and objectives set forth by the founding fathers of our Constitution before its making had been achieved through Preamble, Fundamental Rights and Fundamental Duties. These rights were considered important as they would develop an individual’s personality and provide them with dignity to lead a satisfying life which every individual deserve. Our fundamental rights protects us against unjust laws made by the state and it also keeps a check on both the public and the private enterprises. Fundamental Rights are basic human rights availed by every individual in the country. The rights mentioned in Part III ensures citizens of their freedom, provide them with liberty, and makes sure to remove those in power who acts in an autocratic manner. These rights have been provided in Part III of the Constitution of India. The fundamental Rights are enforceable rights i.e. a person can approach the courts for the violation of his or her rights. The role of fundamental rights is very important in our lives, after being a democratic nation, it is important to provide the citizens with their basic rights to live a life of respect and dignity and to have all the basic requirements to lead a happy and a safe life. The Fundamental Rights are those that are required for a human being to survive with dignity. They represent part of the 'fundamental law of the country,' i.e. the Indian Constitution, and can be challenged in court if violated.
The rights provided are not unlimited, but are subject to reasonable limitations such as public order, decency and morality, defamation, and so on.
Review of literature:
- Name of the book – “Fundamental Rights and Directive Principles in India”
Author – Suresh Mani Tripathi
Publisher - Anchor Academic Publishing
This book gives intricate details about Fundamental Rights and Directive Principles of State Policy enshrined in Part III and Part IV of the Indian Constitution. The author explains that fundamental rights guarantee civil rights to every citizen of India and prohibit the state from infringing on individual liberty. The author defines Directive Principles as the principles that strive to provide social and economic fairness and to pave the way for a welfare state but they are non-justiciable and non-enforceable. - Name of the book – “Arguing Fundamental Rights”
Author - Agustín J. Menéndez, Erik O. Eriksen
Publisher - Springer Netherlands
This book argues about the roles that fundamental rights play in an individual’s life. The focus of the book is about political questions that whether fundamental rights are subject to proper assessment and should the judges be given the power of protection of fundamental rights and what role does the private parties play in this regard. Whether private parties can be charged for the violation of fundamental rights and what are the limitations imposed on every fundamental right with subject to reasonable restrictions, whether these restrictions imposed are beneficial for the security and integrity of the nation and who should be given the final authority to judge the restrictions imposed. - Article - Fundamental Rights under the Indian Constitution : a comprehensive guide with case laws
Written by - R Sai Gayatri
Found on - blog.ipleaders.in
This article discusses the fundamental rights and their historical background, what are the salient features of our fundamental rights, how are the fundamental rights based on the constitutional values with the aim and objective sought to be achieved and these rights protect the freedom and dignity of individuals, the power of amendment has been mentioned in our Constitution but with the limitation of not changing the basic structure of the Constitution.
Research objective:
For this research paper, the topic chosen is the role of fundamental rights as these rights are always in debate. Fundamental rights places a great role in everyone’s life and they are considered to be of great importance. In today’s world, it becomes imperative to know about the actual position of fundamental rights and to know where are they being used or misused. This paper focuses on the role that fundamental right plays and how these roles affect different categories of people in society .
Research Questions:
- What roles did fundamental rights play during the time of National Emergency ?
- Do fundamental rights apply only against government actions? How does the role of fundamental rights affect private entities?
Research Methodology:
Secondary sources of data, including research papers, information from pertinent government reports, and literary works, including literature by prominent authors, have been considered in order to gather information and conduct research for this research paper. In order to examine data from many sources in a flexible and open-ended way, a qualitative study of the material at hand has been done; nevertheless, a personal interpretation of the data has also been created. In order to advance a theory for the subject at hand and arrive at a sound conclusion from the pertinent information given, deductive reasoning has been taken into consideration.
Limitations of the study:
The current paper addresses the role of fundamental rights in context of research questions as well as civil freedoms. However, owing to time limits, it would be impossible to cover every aspect of this topic.
Findings:
Beginning with how fundamental rights came into existence takes us back to the time when we fought for our independence. On 26th November, our Constitution of India was adopted which provided us with Preamble, Fundamental Rights and Fundamental Duties which provides citizens with their basic human rights. Fundamental Rights are been enshrined in Part III of our Constitution ( Article 12–32) which provides citizens with civil liberties and ensures citizens live with peace and harmony. These rights are said to be fundamental as they provide with overall development of citizens either intellectual, moral, material and spiritual. Civil liberties are described as "fundamental rights and freedoms guaranteed to citizens as safeguard from arbitrary government acts as well as other similar unconstitutional involvement without due process." “The Fundamental Rights, as embodied in Part III of the constitution, safeguard rights that enable all Indians to peacefully coexist as citizens of India. The six basic rights are the –
- Right to equality (Article 14-18)
- Right to freedom (Article 19-22)
- Right to be free from exploitation (Article 23-24)
- Right to religious freedom (Article 25-28)
- Cultural and Educational rights (Article 29-30)
- Right to constitutional remedies (Article 32)
The right to property listed in Article 31 was repealed by the 44th amendment act because it was determined to be incompatible with other fundamental rights, notably the right to equality. It has, however, been reassigned as a legal right under Article 300A of Part XII.
These fundamental rights protect each and every individual irrespective of their religion, race, gender etc. The fundamental rights are enforceable in High Courts and Supreme Court of India under Articles 32 and 226 for the violation of their rights.
Article 32 – “Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
Article 226 – “ Power of High Courts to issue certain writs
There is no condition as such where only the person affected can approach the courts, anyone on behalf of that person can approach the court for helping the aggrieved party and fighting for them for their justice . These cases are known as PIL(public interest litigation) where in the larger interest of public, a person can approach the court on their behalf. Not all fundamental rights apply to everyone, some rights are applicable only to the citizens of India and not foreign nationls.
1) During National Emergency –
Emergency provisions finds their place in Part XVIII of the Indian Constitution. During presidentially declared situations of emergency, Part XVIII of the constitution empowers the state to suspend various civil freedoms and the implementation of certain federal principles. The constitution defines three types of emergencies: a threat from "war or external aggression" or "internal disturbances"; a "failure of constitutional machinery" in the nation or a state; and a threat to the nation's or a part of it's financial security or credit. The Fundamental Rights, besides the protection of life and individual liberty, may be suspended under the initial two categories, and federal principles could be declared dysfunctional. Constitution provides for –
- National Emergency
(Article 352) War, external aggression, or armed rebellion in India or a portion of its territory constitutes a national emergency. In India, such an emergency was proclaimed in 1962 (during the Indo-China conflict), 1965 (during the Indo-Pakistan war), 1971, and 1975 (to preserve peace and order). Only on the grounds of a formal request from the Prime Minister and his Council, may the President proclaim such an emergency. It converts the federal government system to a unitary one.. Internal disturbance was utilised instead of armed rebellion prior to the 44th constitutional amendment of 1978. Armed insurrection was incorporated in the constitution after the amendment. Also prior to 1978 A declaration of emergency may last for two months in the initial occurrence, but if confirmed by parliament, the emergency could last indefinitely as long as the government wanted it to. After the 44th Amendment, a declaration of emergency might only be in effect for one month; but, if granted, such a proclamation would be in effect for six months until rescinded sooner. The resolution authorising the proclamation must be voted by a special majority of both houses of parliament, that is, by a majority of the total MPs of the each house as well as a majority of not less than twothirds of the legislators present and voting in each house. Parliament would have to approve the extension of the state of emergency beyond six months every six months. If the proclamation is made while the Lok Sabha is dissolved, or if the Lok Sabha is dissolved without accepting the proclamation, the proclamation remains in effect for 30 days after the Lok Sabha is restored.
- Habeas Corpus Judgement
One of the bizarre rulings by the Supreme Court in the annals of Indian democracy is reportedly the one in the ADM Jabalpur v. Shivkant Shukla case. A five-judge panel made up of Justices Ray, Beg, Chandrachud, Bhagwati, and Khanna rendered the decision in this case. Four justices rendered the majority decision, while Justice Khanna strongly dissented. The court held that – “Given the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala-fides factual or legal or is based on extraneous consideration.” In his dissenting opinion, Justice H.R. Khanna said that using Article 359(1) does not remove a person's ability to ask the Court to apply their legislative rights. He continued by saying that Article 21 was not the exclusive source of life and individual freedom. He said that when an emergency is declared, Article 21 simply loses its procedural power; nonetheless, this article's substantive power is still extremely important, and the State is not allowed to rob someone of their rights to life and liberty without a court order. Because of the intense political interference during that hearing, Justice Khanna's chance to become Chief Justice was lost because of his dissent.
2) Role of fundamental rights against private entities –
In India, the state is typically held accountable for violations of fundamental rights, although in rare circumstances, private persons may also be held accountable. Vertical applications of rights initially suffice, but as private power grows along with the power of the private body and the state's neglect, this facility is no longer adequate. The constitutional court has employed the horizontal application of rights to address these types of situations, allowing an individual to assert his rights against other private individuals. The State now has a great deal of power and jurisdiction thanks to the Indian Constitution. The state has so many powers at its disposal that if it chooses to abuse them, it can do so to a large amount. The need to burden the state with obligations in order to prevent it from becoming authoritarian was recognised by constitution writers as a way to address these issues. All of this marks the start of the tradition of using the state to enforce fundamental rights. The exceptions to this rule include a number of fundamental rights that can be used against a person.
The indirect horizontality has a clear meaning. In this instance, the constitution's rights indirectly govern non-state actors by forcing legal responsibilities on them, as opposed to directly regulating them. This impact works in two different ways. First, in cases when the government is required to defend private citizens from other private citizens and in which the constitution is openly quiet on the matter but assumes its resolution is necessary to achieve its goals. Second, it means that constitutional rights apply to private laws like property law when the court applies constitutional rights to private law. Family law, such as the Geeta Hariharan case. Therefore, we might say that this section governs all law that applies to individuals rather than focusing specifically on them. A noteworthy instance of an indirect horizontal application being used in India is the Vishaka v. State of Rajasthan case, in which a miscreant sexually assaulted an anganwadi worker in the Bhateri village in Rajasthan. The Supreme Court applied the CEDAW anti-sexual harassment principles in that instance as an indirect horizontal approach. In that situation, the state is under a duty to protect private individuals from workplace sexual harassment. Horizontal effect in this way penetrate into the social setup where there is legislative gap exist and decrease the rift between public and private sector.
- Challenges with private entities –
The effect of fundamental rights in the private sphere has been lessened as a result of the Supreme Court's purposeful division of the private public realm into writ petition and PIL, which make it difficult for private individuals to assert their rights. The Indian judicial system has to change and expressly state when and where the horizontal effect is appropriate to apply. Due to unclear classification and language, the judiciary has had a lot of freedom to interpret the law as they see fit. India should follow the South African Constitution's lead in deciding where to draw the line between rights that may be used against people and those that cannot.
Conclusion:
When an emergency is declared, civil freedoms are withdrawn to a significant amount, essential fundamental rights of the people are suspended, strong restriction on the press are applied, and judicial powers are hampered to a great extent. After the Supreme Court's sad ruling in the Habeas Corpus case, it has also served as a reminder that even the court cannot be depended upon to protect citizens against presidential persecution. Both the Indian political and judicial systems gets rattled by the experience of personal liberty being restricted. It is now more important than ever to limit the use of executive authority through stronger administrative and constitutional amendments. As a result, modifications have been added to fill these loopholes in the relevant provisions.
The legal system in India takes a completely different approach than in other nations. In case of any conduct or omission, public entities may be sued under Article 32 of the Indian Constitution. The range of application is quite limited and restricted in the private sector, nevertheless. The courts in India still do not expressly distinguish between what is private and what is public. Therefore, we might conclude that private liability is not common in India and only occasionally manifests itself. If the government violates a person's right to privacy, it may be held responsible. Nevertheless, this power cannot be used against private entities, despite the excess authority they may have. Because private bodies are excluded from the right to privacy, companies like Google and Uber cannot be accused of violating it. The fundamental rights were granted to people solely for the purpose of protecting their liberties from potential violations by those with increased power in the community.
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References: