(FUNDAMENTAL RIGHTS)

Basics of the Fundamental Rights

It covered in the Part III of the Indian Constitution (Under article 12 to article 35). It has largely been incorporated from Bills of Rights of USA constitution and also called as Magna Carta of Indian Constitution because it is Justiciable or Enforceable in a court of law. This is the elaborated fundamental rights description in entire world.

They do not do any discrimination among the citizens of India on the base of  colour, religion, sex etc. It holds the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation. It promotes ideal of political democracy and prevent the establishment of an authoritarian despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State.

It also aim at establishing 'a government of laws and not of men'. Rule of law has three components i.e. Supremacy, Classes to same law and Impartial and powerful judiciary.

Why the Fundamental Rights are Fundamental?

Because they cover the basic of fundamental needs of citizen and are guaranteed and protected by the Constitution, which is the fundamental law of the land. It form the back bone, core and soul of constitution (Fundamental Rights + Directive Principles of State Policy). They are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.

Originally, the Constitution provides for Seven Fundamental Rights:

1. Right to Equality (Articles 14 to 18)
2. Right to Freedom (Articles 19 to 22)
3. Right against Exploitation (Articles 23 to 24)
4. Right to Freedom of Religion (Articles 25 to 28)
5. Cultural and Educational rights (Articles 29 to 30)
6. Right to property (Article 31) : It was deleted by the 44th  Amendment Act 1978. IT is made under legal right under Article 300-A in Part XII of the Constitution.
7. Right to Constitutional Remedies (Article 32): According to father of Indian Constitution Dr. B.R. Ambedkar, Right to enforce Right since itself is fundamental, supreme court can not refuse you to entertain the Right.

 So at present, there are only Six Fundamental Rights.

Features of Fundamental Rights

Some are available only to citizen (15,16,19.29,30), rest are available to both citizen and aliens (except enemy aliens). It is not absolute but qualified (reasonable restrictions decided by the courts). Strike a balance between the rights of the individual liberty and social control. It deals with most of the area against state's arbitrary action, so when such rights are violated by the private individuals, there are no constitutional remedies but only legal remedies.

Some negative rights (like place limitations on State), while others positive in nature (like conferring certain privileges on the persons). Justiciable, allowing persons to move the courts for their enforcement as they are defended and guaranteed by the Supreme Court (Article 32), if and when they are violated. They are not sacrosanct or permanent. Change can be done by CAA (not covered in basic structure of constitution). They can be Suspended during National Emergency except 20, 21. Six rights of Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression (i.e. external emergency) and not on the ground of armed rebellion (i.e. internal emergency).

Limitated by Article 31A (saving of laws providing for acquisition of estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule) and Article 31C (saving of laws giving effect to certain directive principles). Their application to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).

Fundamental Rights restricted while martial law is in force (not national emergency). Military rule imposed under abnormal circumstances to restore order (Article 34). Mostly it is directly enforceable (self-executory) while certain rights like 21A (Right to Education) can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures (to maintain a uniform standard in entire nation) (Article 35).

Article - 33 : Armed Forces & Fundamental Rights

It empowers the Parliament to restrict or abrogate the FRs of the members of armed forces, para-military forces, police forces, intelligence agencies etc. (include employees who are non-combatants), done for proper discharge of their duties and the maintenance of discipline. Under the law, only Parliament can make laws to give the effect to them (Article 19), it cannot be challenged on violation of any of the fundamental rights.

A parliamentary law enacted under Article 33 can also exclude the court martial (tribunals established under the military law) from the writ jurisdiction of the Supreme Court and the high courts, so far as the enforcement of Fundamental Rights is concerned.

Article - 34 : Martial Law

It imposes restrictions on fundamental rights while martial law is in force in any area within the territory of India. Empower the Parliament to indemnify any government servant or others  for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force. So, Act of Indemnify made by the Parliament beyond Judicial Review only on violation of the fundamental rights.

Martial Law: (military rule) Not described in Indian Constitution. Civil administration is run by the military authorities according to their own rule and regulations framed outside the ordinary law, implying suspension of ordinary law and the government by military tribunals. It is imposed under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law to repel force by force for maintaining or restoring order in the society.

Abnormal powers including imposing restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death. The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

Difference with respect to National Emergency

• Martial law affect only Fundamental Rights, while national Emergency is broader in scope affecting Centre State Relationship, Fundamental Rights, Legislative powers, Revenue distribution.
• Military law suspends ordinary law, But courts and government continues in National Emergency.
• Martial law imposed to restore the breakdown of law and order due to any reason, while National Emergency can be imposed only on three grounds (Article 352) i.e. War, External aggregation or Armed rebellion.
• Martial law is always imposed only in some area of the country but National Emergency can be in some area or the entire country.

Article 35 : Laws for Effecting Fundamental Rights

Power to make laws, to give effect to certain specific fundamental rights shall vest only in the Parliament and not in the state legislatures, even if under state list to ensure uniformity throughout India.

• Prescribing residence as a condition under Article 16.
• Empowering courts other than the Supreme Court and the High Courts to issue directions, orders and writs of all kind for the enforcement of fundamental rights (Article 32).
• Restricting or abrogating the application of Fundamental Rights to members of armed forces etc. (Article 33)
• Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).

Parliament can also make laws for prescribing punishment for those acts that are declared to be offences under the fundamental rights. These include the following:

• Untouchability - (Article 17)
• Traffic in human beings and forced labour - (Article 23)
• Law before independence will continue as such