Fundamental Rights, Directive Principles and Fundamental Duties of India
The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties represent sections of the Constitution of India that prescribe the fundamental obligations of the State° to its citizens and the duties of the citizens to the State. Those sections comprise a constitutional bill of rights guidelines for government policy-making and the behavior and conduct of citizens developed between 1947 and 1949 by the Constituent Assembly of India.
Credit for the remarkable success of India in establishing itself as a Republic in the face of seemingly insurmountable challenges goes the Fundamental Rights, Directive Principles, and Fundamental Duties. The first and foremost task of a government is to protect the basic rights of its citizens to life, liberty, property, freedom of religious belief and practice, and freedom of association. If that is lacking, economic and social justice will fail. The rights, principles, and duties have provided the stability and balance needed for the Indian ship of state to sail safely through treacherous waters.
The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed or gender. They are enforceable by the courts, subject to specific restrictions.
The Directive Principles of State Policy serve as guidelines for the framing of laws by the government. Those provisions (set out in Part IV of the Constitution), rather than laws enforceable by the courts, set forth principles for the fundamental guidelines for the State to apply in framing and passing laws.
The Fundamental Duties have been defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. Those duties (set out in Part IV–A of the constitution) concern individuals and the nation. Like the Directive Principles, they represent guidelines rather than enforceable laws.
In 1928, an All Parties Conference of representatives from Indian political parties proposed constitutional reforms for India. That 11-member committee, led by Motilal Nehru, had been called into existence as a formal instrument to complement the widespread civil disobedience campaigns of the 1920s. Those mass campaigns had originally been a response to the Rowlatt Acts, which in 1919 had given the British colonial government the powers of arrest and detention, conduction of searches and seizures without warrants, restriction of public gatherings and censorship of the press. Demanding dominion status and elections under universal suffrage, the committee called for guarantees of rights deemed fundamental, representation for religious and ethnic minorities and limitations on government powers.
In 1931, the Indian National Congress, at its Karachi session, adopted resolutions defining, as well as committing itself to the defence of fundamental civil rights, including socio-economic rights such as minimum wage, the abolition of untouchability and serfdom. Committing themselves to socialism in 1936, the leaders of the Congress party took examples from the Soviet constitution, which inspired the fundamental duties of citizens as a means of collective, patriotic responsibility.
The Constituent Assembly of India, which composed of elected representatives under the presidency of Rajendra Prasad undertook the task of developing a constitution for an independent India. The assembly appointed a constitution drafting committee headed by Bhimrao Ramji Ambedkar. The adoption of the Universal Declaration of Human Rights by the U.N. General Assembly on 10 December 1948 influenced the process. The declaration called upon all member States to adopt those rights in their constitutions. The final draft of the constitution included The Fundamental Rights and Directive Principles promulgated on November 26, 1949, while the 42nd Amendment Act added the Fundamental Duties to the constitution in 1976. Changes in Fundamental Rights, Directive Principles and Fundamental Duties require a constitutional amendment, that must be passed by a two-thirds majority in both houses of Parliament.
The Fundamental Rights (embodied in Part III of the constitution) guarantee civil liberties such that all Indians can lead their lives in peace as citizens of India. The six fundamental rights include the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.
Those include individual rights common to most liberal democracies, incorporated in the fundamental law of the land, enforceable in a court of law. Violations of those rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. Neither absolute nor immune from constitutional amendments, the rights have been aimed at overturning the inequalities of pre-independence social practices. Specifically, they resulted in abolishment of untouchability and prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They forbid human trafficking and unfree labour. They protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and administer their own educational institutions.
All people, irrespective of race, religion, caste or sex, have the right to approach the High Courts or the Supreme Court for the enforcement of their fundamental rights. The aggrieved party may have a case brought before the courts without their request. In public interest, anyone can initiate litigation in the court on their behalf, called "Public interest litigation". High Court and Supreme Court judges can also act on their own on the basis of media reports.
|Theories of rights|
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The Fundamental Rights emphasize equality by guaranteeing to all citizens the access and use of public institutions and protections, irrespective of their background. The rights to life and personal liberty apply for persons of any nationality, while others, such as the freedom of speech and expression apply only to the citizens of India (including non-resident Indian citizens). The right to equality in matters of public employment applies only to citizens in India, overseas citizens of India stand outside the protection of the law.
Fundamental Rights primarily protect individuals from any arbitrary State actions, but individuals may have legal action taken against them for violation of fundamental rights. For instance, the constitution abolishes untouchability and prohibits begar. Those provisions act as a check both on State action and actions of private individuals. Fundamental Rights have a relative nature, subject to reasonable restrictions as necessary for the protection of national interest. In the Kesavananda Bharati vs. state of Kerala case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended. The Parliament must preserve the basic structure of the constitution like secularism, democracy, federalism, separation of powers. Often called the "Basic structure doctrine," that decision has taken has become widely regarded as an important part of Indian history. In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of Fundamental Rights.
The Fundamental Rights can only be altered by a constitutional amendment, hence their inclusion serves as a check on the executive branch, the Parliament and state legislatures. The imposition of a state of emergency may lead to a temporary suspension of the rights conferred by Article 19 (including freedoms of speech, assembly and movement, etc.) to preserve national security and public order. The President can, by order, suspend the right to constitutional remedies as well.
The right to equality constitutes one of the chief guarantees given in Articles 14, 15, 16, 17 and 18 of the constitution. The right serves as the principal foundation of all other rights, guaranteeing equality of all citizens before law, social equality, equal access to public areas, equality in matters of public employment, the abolition of untouchability and of titles. Reservations (i.e, quotas in jobs, education, etc.) can be made for women, children, scheduled castes and scheduled tribes.
The Fundamental Rights prohibit the State from discriminating against anyone in the matters of employment except for the implementation of any mandated quotas, and when the case for specific knowledge has been made. To preserve religious freedom, the holder of an office of any religious institution should be a person professing that particular religion. The right to equality in matters regarding public employment applys only to within India, overseas citizens of India stand beyond the scope of the law. The practise of untouchability has been declared an offence punishable by law. The law prohibits the State from conferring, and citizens of India from accepting, titles from a foreign State. Indian aristocratic titles such as Rai Bahadurs and Khan Bahadurs have been abolished. Military and academic distinctions may be conferred on the citizens of India. Law specifies that recipients of awards such as the Bharat Ratna "cannot be used by the recipient as a title." A ruling by the Supreme Court on December 15, 1995 upheld the validity of such awards.
Articles 19, 20, 21 and 22 state the right to freedom with the view of guaranteeing individual rights considered vital by the framers of the constitution. The right to freedom encompasses the freedom of expression, the freedom to assemble peacefully without arms, the freedom to form associations and unions, the freedom to move freely and settle in any part of the territory of India and the freedom to practise any profession. Restrictions can be imposed on all those rights in the interest of security, decency and morality. The constitution guarantees the right to life and personal liberty. Protection with respect to conviction for offences, protection of life and personal liberty and the rights of a person arrested under ordinary circumstances reside in the right to life and personal liberty.
The Right to freedom of religion' (covered in Articles 25, 26, 27 and 28) provides religious freedom to all citizens and preserves the principle of secularism in India. According to the constitution, all religions stand equally before the State. Citizens may preach freely, practice and propagate any religion of their choice. Several distinct and often controversial practises, such as the wearing and carrying of kirpans constitutes the profession of Sikhism and stands protected under law. Religious communities can set up charitable institutions of their own, subject to certain restrictions in the interest of public order, morality and health. The law forbids compelling any person to pay taxes for the promotion of a religion nor may a State-run institution present education associated with a particular religion.
The cultural and educational rights (given in Articles 29 and 30) represent measures to protect the rights of ethnic and religious minorities. Any community with a language and a script of its own has the right to conserve and develop them. All citizen's enjoy equal opportunity for admission in State or State-aided institutions. All religious and ethno-linguistic communities can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State must respect all institutions administered by a minorities. The right to education at elementary level has been made one of the Fundamental Rights under right to life and personal liberty by the 86th constitutional amendment of 2002.
The Right against exploitation, given in Articles 23 and 24 provides for the abolition of human trafficking, and the abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour represents a violation of the spirit and provisions of the constitution. Begar (forced and unfree labour), practiced in the past by landlords, has been declared a crime punishable by law. Law prohibits trafficking in humans for the purpose of slave trade or prostitution. Exceptions for employment without payment cover services for public purposes, such as compulsory military conscription.
The Right to constitutional remedies empowers the citizens to approach a court of law to appeal against denial of the Fundamental Rights. For instance, in case of imprisonment, the person can request the court to review the ruling in light of the provisions of the law of the country. If the court finds violations, the person will be released from custody. The procedure of asking the courts to preserve or safeguard the citizens' Fundamental Rights can be done in various ways. The courts can issue writs, namely habeas corpus, mandamus, prohibition, quo warranto and certiorari. When the government declares a national or state emergency, the right may be suspended.
The Right to property constituted a Fundamental Right under Article 32 before revoked by the 44th Amendment Act of 1978. A new article, Article 300-A, appended the constitution, providing protection of a person's property from confiscation, except by the authority of law. If a legislature makes a law depriving a person of his property, the State stands free of obligation to pay any compensation. The aggrieved person loses the right of appeal to court under Article 32. The right to property has been removed as a fundamental right, though possibly still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law.
Directive Principles of State Policy
The Directive Principles of State Policy, embodied in Part IV of the constitution, constitute directions given to the central and state governments to guide the establishment of a just society in the country. According to the constitution, the government should keep them in mind while framing laws, even though non-justiciable in nature. Directive Principles classify into the following categories: Gandhian, social, economic, political, administrative, legal, environmental, protection of monuments, peace and security.
The Directive Principles act as a check on the government; theorized as a yardstick in the hands of the people to measure the performance of the government. Article 31-C, added by the 25th Amendment Act of 1971, seeks to upgrade the Directive Principles. If the government made laws to give effect to the Directive Principles over Fundamental Rights, they shall remain valid even on the grounds that they take away the Fundamental Rights. In case of a conflict between Fundamental Rights and Directive Principles, if the latter aim at promoting larger interest of the society, the courts will have to uphold the case in favour of Directive Principles.
The Directive Principles commit the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight economic inequality. The State must continually work towards providing an adequate means of livelihood for all citizens, equal pay for equal work for men and women, proper working conditions, protection against exploitation and reduce the concentration of wealth and means of production from the hands of a few. The State must provide free legal aid to ensure that opportunities for securing justice remain intact for all citizens in spite of economic or other disabilities. The State should work for organization of village panchayats, provide the right to work, education and public assistance in certain cases; as well as the provision of just and humane conditions of work and maternity relief. A living wage and safe working conditions for citizens must be ensured, as must their participation in the management of industries. The State has a responsibility to secure a uniform civil code for all citizens, provide free and compulsory education to children, and to work for the economic uplift of scheduled castes, scheduled tribes and other backward classes.
The Directive Principles commit the State to raise the standard of living and improve public health, and organize agriculture and animal husbandry on modern and scientific lines. The State must safeguard the environment and wildlife of the country. The State must ensure the preservation of monuments and objects of national importance and separation of judiciary from executive in public services The State must also strive for the maintenance of international peace.
The Directive Principles have been amended to meet definite objectives. Article 45, which ensures Provision for free and compulsory education for children, was added by the 86th Amendment Act, 2002. Article 48-A, which ensures Protection of the environment and wildlife, had been added by the 42nd Amendment Act, 1976.
The 42nd Amendment Act added the Fundamental Duties of citizens in 1976. The ten Fundamental Duties (given in Article 51-A of the constitution) can be classified as either duties towards self, duties concerning the environment, duties towards the State and duties towards the nation. The 86th constitutional amendment added the 11th Fundamental Duty, which states that every citizen "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" in 2002.
Citizens have a moral obligation by the constitution to perform those duties, although non-justifiable, incorporated only with the purpose of promoting patriotism among citizens. Those obligations extend not only to the citizens, but also to the State. International instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights make reference to such duties. The Fundamental Duties obligate all citizens to respect the national symbols of India (including the constitution), to cherish its heritage and assist in its defense. It aims to promote the equality of all individuals, protect the environment and public property, to develop "scientific temper," to abjure violence, to strive towards excellence and to provide free and compulsory education.
Criticism and analysis
The Fundamental Rights have been criticized as inadequate in providing freedom and opportunity for all Indians. Many political groups have demanded that the right to work, the right to economic assistance in case of unemployment and similar socio-economic rights be enshrined as constitutional guarantees, presently listed in the directive principles of state policy. The right to freedom contains a number of limiting clauses and has been criticised for failing to check government powers such as provisions of preventive detention and suspension of fundamental rights in times of emergency. The phrases "security of State," "public order" and "morality" remain unclear, having wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" remain vague in the constitution, leading to frequent litigations. The Maintenance of Internal Security Act (1975) received strong criticism for giving then-Prime Minister Indira Gandhi the authority to arrest opposition leaders following the declaration of emergency in 1975. The Prevention of Terrorism Act (2002), now repealed, has been criticized as unfairly targeting the Muslim community. Initially, the Supreme Court provided extensive power to the State in its verdict to the A. K. Gopalan vs. state of Madras case in 1950. The Court held that howsoever unreasonable, a law was valid if made by a legislature competent to enact it. If Parliament validly enacted a law permitting the State to kill without any judicial process, that would amount to "procedure established by law" and such killings would fall within the guarantee contained in Article 21.2. A series of decisions, starting from the 1970s and culminating in the judgment in 1978 Maneka Gandhi v. Union of India, which issued the basic structure doctrine, led to the abandoning of that interpretation. In D. K. Basu vs. state of West Bengal the Supreme Court ruled that the limiting clauses of the constitution as well as international human rights instruments leave the Court's discretionary power to award compensation in the cases of illegal arrest or detention, protecting the rights of citizens in spite of prevailing circumstances. The directives permit the freedom to assemble peaceably and without arms, but in many cases, the police brake up those meetings if they become disruptive.
Freedom of press, meant to guarantee freedom of expression, has been left out of the constitution. Employment of child labour in hazardous environments has been reduced, but their employment in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit of the constitution in the eyes of many critics and human rights advocates, as more than 16.5 million children are being used as labour. India ranked 88 out of 159 countries in 2005 for the public's perception of corruption among public officials and politicians.
Efforts to implement the Directive Principles include the Programme for the Universalisation of Elementary Education and the Five-Year Plans have accorded the highest priority to provide free education to all children up to the age of fourteen. The 86th constitutional amendment of 2002 created Article 21-A, that seeks to provide free and compulsory education to all children aged six to fourteen years. The State runs welfare programmes such as boys' and girls' hostels for scheduled castes and scheduled tribes' students. The government declared the year 1990–1991 the "Year of Social Justice" in the memory of B.R. Ambedkar. The government provides free textbooks to students belonging to scheduled castes and tribes pursuing medicine and engineering courses. During 2002–2003, the government provided a sum of Rs. 4.77 crore (47.7 million) for that purpose. To protect scheduled castes and tribes from discrimination, the government enacted the Prevention of Atrocities Act in 1995, prescribing severe punishments for such actions.
Land reform legislations have been enacted several times to provide ownership rights to poor farmers. Up to September 2001, more than 20 million acres (81,000 km_) of land had been distributed to scheduled castes, scheduled tribes and the landless poor. Banks have as a core policy objective improving banking facilities in the rural areas. The Minimum Wages Act of 1948 empowers government to fix minimum wages for people working across the economic spectrum. The Consumer Protection Act of 1986 provides for the better protection of consumers. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, award relief and compensation wherever appropriate to the consumer.  The Equal Remuneration Act of 1976 provides for equal pay for equal work for both men and women. The Sampoorna Grameen Rozgar Yojana (Universal Rural Employment Programme) was launched in 2001 to attain the objective of providing gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions.
A system of elected village councils, known as Panchayati Raj covers almost all states and territories of India. One-third of the total number of seats have been reserved for women in Panchayats at every level; and in the case of Bihar, half the seats have been reserved for women.  Legal aid at the expense of the State has been made compulsory in all cases pertaining to criminal law, if the accused lacks the means to engage a lawyer. The judiciary has been separated from the executive "in all the states and territories except Jammu and Kashmir and Nagaland." India's foreign policy has been influenced by the Directive Principles. India supported the United Nations in peace-keeping activities, with the Indian Army having participated in thirty seven UN peace-keeping operations.
The implementation of a uniform civil code for all citizens has fallen short of objectives owing to widespread opposition from various religious groups and political parties. The Shah Bano case (1985–1986) provoked a political firestorm in India when the Supreme Court ruled Shah Bano, a Muslim woman whose husband divorced her in 1978, entitled to receive alimony from her former husband under Indian law applicable for all Indian women. That decision evoked outrage in the Muslim community, which sought the application of the Muslim personal law and in response the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 overturning the Supreme Court's verdict. That act provoked further outrage, as jurists, critics and politicians alleged that the fundamental right of equality for all citizens irrespective of religion or gender had been jettisoned to preserve the interests of distinct religious communities. The verdict and the legislation remain a source of heated debate, with many citing the issue as a prime example of the poor implementation of Fundamental Rights.
The Fundamental Duties have been criticized for ambiguous wording, with the real meaning of phrases like "scientific temper" and "spirit of enquiry and reform" vigorously debated. As the duties lack enforcement rights, many question their relevance to practical affairs. Actions damaging public property and showing disrespect to the National Flag fall in the category of offences punishable by law. Similarly, people may be called upon to defend the country by compulsorily recruitment to the armed forces of the country through conscription.
- Fundamental Rights in India
- Directive Principles in India
- Constitution of India
- Writs in Indian law
- Human rights in India
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Note °: The term "State" includes all authorities within the territory of India. It includes the Government of India, the Parliament of India, the Government and legislature of the states of India. It also includes all local or other authorities such as Municipal Corporations, Municipal Boards, District Boards, Panchayats etc. To avoid confusion with the term states, the administrative divisions, State (encompassing all the authorities in India) has been capitalized and the term state is in lowercase.
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