Fundamental Rights in India

The Fundamental Rights in India enshrined in the Part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental 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, creed, colour or sex. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.

The seven fundamental rights are: [.]
# Right to equality
# Right to freedom
# Right against exploitation
# Right to freedom of religion
# Cultural and educational rights
# Right to constitutional remedies
# Right to Life and personal liberty (As per 86th amendment of 2002)

Rights literally mean those freedoms which are essential for personal good as well as the good of the community. The rights guaranteed under the Constitution of India are fundamental as they have been incorporated into the "Fundamental Law of the Land" and are enforceable in a court of law. However, this does not mean that they are absolute or that they are immune from Constitutional amendment.Tayal, B.B. & Jacob, A. (2005), "Indian History, World Developments and Civics", pg. A-23]

Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.

Genesis

The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789). Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and British political parties.

In 1919, the Rowlatt Acts gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.

In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom. [cite book
last = Gandhi
first = Rajmohan
title = Patel: A Life
pages = 206] Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.

When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives under the presidency of Rajendra Prasad. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws.cite web
last = UNI
authorlink = United News of India
url = http://www.rediff.com/freedom/22patel.htm
title = Sardar Patel was the real architect of the Constitution
format = HTML
publisher = Rediff.com
accessdate = 2006-05-15] Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.

The Fundamental Rights were included in the Ist Draft Constitution (February 1948), the IInd Draft Constitution (17 October 1948) and the IIIrd and final Draft Constitution (26 November 1949), being prepared by the Drafting Committee.

Significance and characteristics

The Fundamental Rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State.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 and territories of India, State (encompassing all the authorities in India) has been capitalized and the term state is in lowercase.] According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the Fundamental Rights. [cite book
last = Laski
first = Harold Joseph
authorlink = Harold Laski
year = 1930
title = Liberty in the Modern State
publisher = Harpers and Brothers
location = New York and London]

All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their Fundamental Rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation". [cite web
url = http://www.worldlii.org/int/cases/ICHRL/1995/69.html
title = "Bodhisattwa Gautam vs. Subhra Chakraborty"; 1995 ICHRL 69
format = HTML
publisher = [http://www.worldlii.org/ World Legal Information Institute]
language = English
accessdate = 2006-05-25 This was the case where Public interest litigation was introduced (date of ruling 15 December 1995).] In some cases, High Court judges have acted on their own on the basis of newspaper reports.

These Fundamental Rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some Fundamental Rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens. [Tayal, B.B. & Jacob, A. (2005), "Indian History, World Developments and Civics", pg. A-25] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.cite web
url = http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf
title = "Citizenship (Amendment) Bill, 2003"
format = PDF
pages = 5
publisher = [http://rajyasabha.nic.in/ Rajya Sabha]
accessdate = 2006-05-25]

Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. [cite web
url = http://www.worldlii.org/int/cases/ICHRL/1995/69.html
title = "Bodhisattwa Gautam vs. Subhra Chakraborty"; 1995 ICHRL 69
format = HTML
publisher = [http://www.worldlii.org/ World Legal Information Institute]
language = English
accessdate = 2006-05-25 This was the case where fundamental rights were enforced against private individuals (date of ruling 15 December 1995).] For instance, the Constitution abolishes untouchability and also prohibits "begar". These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled [Kesavananda Bharati vs. The State of Kerala"; AIR 1973 S.C. 1461, (1973) 4 SCC 225 — In what became famously known as the "Fundamental Rights case", the Supreme Court decided that the basic structure of the Constitution of India was unamendable.] that all provisions of the Constitution, including Fundamental Rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Features such as secularism and democracy fall under this category. Since the Fundamental Rights can only be altered by a constitutional amendment, their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. [Tayal, B.B. & Jacob, A. (2005), "Indian History, World Developments and Civics", pg. A-24]

A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well.

Right to equality

Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following:

*Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State cannot discriminate against a citizen on the basis of caste, creed, colour, sex, religion or place of birth. [.] According to the "Electricity Act" of 26 January 2003 the Parliament has the power to create special courts [cite web
url = http://powermin.nic.in/acts_notification/pdf/The%20Electricity%20Act_2003.pdf
title = "Electricity Act 2003"
format = PDF
publisher = [http://powermin.nic.in/ Ministry of Power, India]
language = English
accessdate = 2006-05-25 cite web
url = http://powermin.nic.in/acts_notification/electricity_act2003/special_courts.htm
title = Special Courts
format = HTML
publisher = [http://powermin.nic.in/ Ministry of Power, India]
language = English
accessdate = 2006-05-25] for the speedy trial of offences committed by persons holding high offices. Creation of special courts is not a violation of this right.

*Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes. [.]

*Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion. [.] According to the "Citizenship (Amendment) Bill", 2003, this right shall not be conferred to Overseas citizens of India.cite web
url = http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf
title = "Citizenship (Amendment) Bill, 2003"
format = PDF
pages = 5
publisher = [http://rajyasabha.nic.in/ Rajya Sabha]
language = English
accessdate = 2006-05-25]

*Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offense and anyone doing so is punishable by law. [.] The "Untouchability Offences Act" of 1955 (renamed to "Protection of Civil Rights Act" in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.

*Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State. [.] The British government had created an aristocratic class known as "Rai Bahadurs" and "Khan Bahadurs" in India — these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of "Bharat Ratna" and "Padma Vibhushan" cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". [cite book
last = Basu
first = Durga Das
year = 1988
title = Shorter Constitution of India
publisher = Prentice Hall of India
location = New Delhi cite book
last = Basu
first = Durga Das
year = 1993
title = Introduction to the Constitution of India
publisher = Prentice Hall of India
location = New Delhi] The Supreme Court, on 15 December 1995, upheld the validity of such awards.

Right to freedom

The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the following six freedoms: [.]

*Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.

*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 on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.

*Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.

*Freedom to reside and settle in any part of the territory of India which is also 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.cite book
last = Pylee
first = M.V.
year = 1999
title = India’s Constitution
publisher = S. Chand and Company
location = New Delhi
id = ISBN 81-219-1907-X]

*Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.

The constitution also 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 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 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 only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in the year 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. [cite journal |author=Nandan G |title=Indian grants right to suicide |journal=BMJ |volume=308 |issue=6941 |pages=1392 |month=May |year=1994 |url=http://www.bmj.com/cgi/content/full/308/6941/1392] In the year 1996 however another Supreme Court ruling nullified the earlier one. [ [http://www.geradts.com/anil/ij/vol_007_no_001/papers/paper003.html Paper 3: Abolition and Restoration of Section 309 IPC – an overview by BR Sharma, A Sharma, D Harish: Anil Aggrawal's Internet Journal of Forensic Medicine: Vol. 7, No. 1 (January - June 2006) ] ] ) "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. ["Maneka Gandhi v. Union of India"; AIR 1978 S.C. 597, (1978).]

A little understanding of Article 21 is required here as it says, No Person shall be deprived of his life or personal liberty except according to the procedure established by law. Initially, in A.K.Gopalan v State of Madras, AIR 1950 SC 27; 1950 SCR 88, as early as 1950, where the validity of the Preventive Detention Act, 1950 was challenged, the main question was whether Article 21 envisaged any procedure laid down by a law enacted by a legislature, or whether the procedure should be fair and reasonable. By this case, an attempt was made to win for the detenu better procedural safeguards than were available to him under the relevant detention law and Article 22, and a very important question was raised which required interpretation of Constitution. But the attempt failed as the Supreme Court of India rejected the argument that expression 'procedure established by law' introduces into India the American concept of procedural due process which enables the courts to see whether the law fulfils the requisite elements of a reasonable procedure.

In fact, the draft Constitution of India had contained the words 'due process of law' but these words were later dropped and the present phraseology adopted instead. But as per the Supreme Court of India, this was strong evidence to show that the Constituent Assembly did not desire to introduce into India the concept of procedural due process which was done mainly to avoid the uncertainty surrounding the due process concept in the USA. However, the decision in Gopalan case was a majority decision and Justice Fazl Ali disagreed with the majority view and accepted the due process argument.

Then in 1978, in Maneka Gandhi Case, mentioned above, the Supreme Court re-interpreted Article 21 and practically overruled Gopalan Case and gave a highly creative judicial pronouncement. This case shows how liberal tendencies have influenced the Supreme Court of India in the matter of interpreting Fundamental Rights, particularly Article 21. The leading opinion in this case was pronounced by Justice Bhagwati, who also gave the Doctrine of Absolute Liability and Deep Pocket Theory in the famous Oleum Gas Leak Case. Justice Bhagwati was also the only judge in minority opinion when the Constitutionality of the Death Penalty was challenged on the grounds of being violative of Article 21 (amongst a few others) in Bachan Singh v State of Punjab (for Justice Bhagwati's opinion see AIR 1982 SC 1325, 1350). The Court held that the procedure must satisfy certain requisites in the sense of being fair and reasonable. The procedure cannot be arbitrary, unfair or unreasonable. According to Justice Bhagwati, Article 21 embodies a constitutional value of supreme importance in a democratic society (Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746).

*In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made primary education as a fundamental right. It says that " to the children in the age group of six to fourteen years shall be provided free and compulsory education " by the state.

*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. [.]

*Right to education by the 86th Constitutional amendment has been made one of the Fundamental Rights under the right to life and personal liberty. [http://indiacode.nic.in/coiweb/amend/amend86.htm 86th Amendment Act, 2002] .]

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.

Right against exploitation

The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and "Begar" (forced labor),.] and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution. [.] "Begar", practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision.

Right to freedom of religion

Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. However, certain practices like wearing and carrying of "Kirpans" in the profession of the Sikh religion, can be restricted in the interest of public order, morality and health..]

Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. [.] No person shall be compelled to pay taxes for the promotion of a particular religion. [.] A State run institution cannot impart education that is pro-religion. [.] Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.

Cultural and educational rights

As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop them. No citizen can be discriminated against for admission in State or State aided institutions. [.]

All minorities, religious or linguistic, can set up their own educational institutions in order to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution. [.] But the right to administer does not mean that the State can not interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that "the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission.

Right to constitutional remedies

Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of "writs". These writs are "habeas corpus", "mandamus", "prohibition", "quo warranto" and "certiorari". When a national or state emergency is declared, this right is suspended by the central government. [.]

Right to property — a former fundamental right

The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose off property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been take for public purposes.

The provisions relating to the right to property were changed a number of times. The 44th amendment act of 1978 deleted the right to property from the list of Fundamental Rights. [http://indiacode.nic.in/coiweb/amend/amend44.htm 44th Amendment Act, 1978] .] A new article, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.Tayal, B.B. & Jacob, A. (2005), "Indian History, World Developments and Civics", pg. A-33]

Right to Bear Arms

One of the most important amendments "Right to bear arms" was supported by the congress party during the drafting of the constitution by the constituent assembly.Known as amendment 438 which was supported by many founding fathers but was rejected in the end by Dr. BR Ambedkar [http://parliamentofindia.nic.in/ls/debates/vol7p18b.htm] [http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm] [http://parliamentofindia.nic.in/ls/debates/vol5p6.htm] .The right to bear arms was supported by many founding fathers.quotes:"One thing more I want to say. Mr. Kamath in his amendment wants the right to bear arms. In most Constitutions throughout the world this right has been recognized. We ourselves throughout recent history have asked that this should be our right. In fact I remember,when Mahatma Gandhi wrote to Lord Irwin in 1930 about the Eight Points, which he wanted to be accepted, one was about this right to bear arms. The question of this right to bear arms dates back to 1878 when, after the mutiny, the British Government disarmed the Nation. I think that after freedom we should at least allow this thing, as only an armed people can support the Government. I hope Dr. Ambedkar will do something about it. "

Shri H. V. Kamath: A very handy argument The Honourable Dr. B. R. Ambedkar: It is because the British Government had refused to allow Indians to bear arms, not on the ground of peace and order, but on the ground that a subject people should not have the right to bear arms against an alien government so that they could organise themselves to overthrow the Government, and consequently the basic considerations on which thesere solutions were passed in my judgment have vanished. Under the present circumstances, I personally myself cannot conceive how it would be possible for the State to carry onits administration if every individual had the right to go into the market and purchase all sorts of instruments of attack without any let or hindrance from the State.

Critical analysis

The Fundamental Rights have been criticised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. [.] The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of Fundamental Rights in times of Emergency. The provisions of acts like MISA ("Maintenance of Internal Security Act") and NSA ("National Security Act") are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights. The phrases "security of State", "public order" and "morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peacably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods. [ [http://web.mid-day.com/news/city/2006/may/137263.htm Senior Inspector justifies lathi-charge] during the 2006 Indian anti-reservation protests] [ [http://www.dnaindia.com/report.asp?NewsID=1029206&CatID=1 Lathi Charge in Mumbai] during the 2006 Indian anti-reservation protests]

"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India. [cite web
url = http://www.indiatogether.org/photo/2006/chi-labour.htm
title = Child labour in India
format = HTML
publisher = [http://www.indiatogether.org India Together]
language = English
accessdate = 2006-06-27] India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. [Index of perception of corruption, published by Transparency International.] The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the "Citizenship (Amendment) Bill", 2003.

Amendments

Changes in Fundamental Rights require a Constitutional amendment which has to be passed by a special majority of both houses of the Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house — whether the Lok Sabha or Rajya Sabha.
*The right to property was originally included as a fundamental right. However, the 44th Amendment passed in 1978, revised the status of property rights by stating that "No person shall be deprived of his property save by authority of law" to further the goals of socialism.
*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.

See also

*Fundamental Rights, Directive Principles and Fundamental Duties of India
*Directive Principles in India
*Constitution of India
*Government of India
*Parliament of India
*Writs in Indian law

References

* Harvard reference
Surname = Basu
Given = Durga Das
Year = 1988
Title = Shorter constitution of India
Place = New Delhi
Publisher = Prentice Hall of India

* Harvard reference
Surname = Basu
Given = Durga Das
Year = 1993
Title = Introduction to the constitution of India
Place = New Delhi
Publisher = Prentice Hall of India

* cite web
url = http://www.worldlii.org/int/cases/ICHRL/1995/69.html
title = "Bodhisattwa Gautam vs. Subhra Chakraborty"; 1995 ICHRL 69
format = HTML
publisher = [http://www.worldlii.org/ World Legal Information Institute]
language = English
accessdate = 2006-05-25 Date of ruling 15 December 1995

* cite web
url = http://en.wikipedia.org/wiki/Basic_structure#The_Kesavananda_Case_of_1973
title = "Kesavananda Bharati vs. The State of Kerala"; AIR 1973 S.C. 1461, (1973) 4 SCC 225
publisher = Wikipedia
language = English
accessdate = 2006-05-25 In this case, famously known as the "Fundamental Rights case", the Supreme Court decided that the basic structure of the Constitution of India was unamendable.

* Harvard reference
Surname = Laski
Given = Harold Joseph
Authorlink = Harold Laski
Year = 1930
Title = Liberty in the Modern State
Place = New York and London
Publisher = Harpers and Brothers

* "Maneka Gandhi v. Union of India"; AIR 1978 S.C. 597, (1978).

* Harvard reference
Surname = Pylee
Given = M.V.
Year = 1999
Title = India’s constitution
Place = New Delhi
Publisher = S. Chand and Company
ID = ISBN 81-219-1907-X

* Harvard reference
Surname1 = Sinha
Given1 = Savita
Surname2 = Das
Given2 = Supta
Surname3 = Rashmi
Given3 = Neeraja
Year = 2005
Title = Social Science – Part II
Place = New Delhi
Publisher = National Council of Educational Research and Training, India
ID = ISBN 81-7450-351-X

* Harvard reference
Surname1 = Tayal
Given1 = B.B.
Surname2 = Jacob
Given2 = A.
Year = 2005
Title = Indian History, World Developments and Civics
Place = District Sirmour, Himachal Pradesh
Publisher = Avichal Publishing Company
ID = ISBN 81-7739-096-1

* Harvard reference
Surname1 = O'Flaharty
Given1 = W.D.
Surname2 = J.D.M.
Given2 = Derrett
Year = 1981
Title = The Concept of Duty in Asia; African Charter on Human and People's Right of 1981

* Article 29 of "Universal Declaration of Human Rights and International Covenant on Civil and Political Rights".

Footnotes

Template group
list =Government of India