KIRLOSKAR INSTITUTE OF ADVANCED MANAGEMENT STUDIES

BUSINESS LAW

PROJECT REPORT ON

FUNDAMENTAL RIGHTS AND DUTIES

Submitted to
Ms MADHVI KULKARNI

Submitted by:
ANISH WADHWA (PGDM2011-10)

TABLE OF CONTENTS

Sr No

Particulars

Page No.

1.

Introduction

2.

Objective

3.

Fundamental Rights

i. Right to Equality ii. Right to Freedom iii. Right against Exploitation iv. Right to Freedom of Religion v. Cultural and Educational Rights vi. Right to Constitutional Remedies

7 9 10 11 12 13

4.

FUNDAMENTAL DUTIES

16

5.

Conclusion

19

6.

Bibliography

20

Introduction

The Fundamental Rights and Duties are provided to the citizens of INDIA by the Constitution of India and are among the vital sections of the Constitution and prescribe the fundamental obligations of the state to its citizens and the duties of the citizens to the state. They were developed by the Constituent Assembly of India between 1947 and 1949. Part III of the Constitution of India describes the Fundamental Rights offered to the country`s citizens and in Part IV describes the Fundamental Duties. Fundamental Rights are essential human rights that are offered to every citizen irrespective of caste, race, creed, place of birth, religion or gender and are subjected to specific restrictions and enforceable by courts. These are equal to freedoms and are essential for personal good and the society at large and are preserved as they guarantee civil liberties to all the citizens of the country for a calm and pleasant life. The concept of providing the fundamental rights to the citizens has been taken from the England`s Bill of Rights; United States Bill of Rights and also France`s Declaration of the Rights of Man. Anyone who is violating the fundamental rights will face punishments in the court of law. Fundamental Duties are identified as the moral obligations that actually help in upholding the spirit of nationalism as well as to support the harmony of the nation. These duties are designed concerning the individuals and the nation. However, these fundamental duties are not legally enforceable. Furthermore, the citizens are morally obligated by the constitution to perform these duties. These Fundamental Duties were added by the 42nd Amendment Act in 1976. Article 51-A of the constitution provides ten Fundamental Duties of the citizen. The international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights include reference of such fundamental duties.

OBJECTIVE

Every individual should be aware of his/her rights and duties which he/she has towards the nation. One should know that these rights are essential for the wellbeing of every individual and are aimed at overturning the inequalities of the past social practices. One should also know how, when and why these rights are given to us. Also along with these rights we have some responsibilities towards our nation which are our fundamental duties which serve a useful purpose. In particular, no democratic polity can ever succeed where the citizens are not willing to be active participants in the process of governance by assuming

FUNDAMENTAL RIGHTS

Fundamental Rights are rights which some hold to be inalienable and belonging to all human, according to natural law. Fundamental Rights are those rights and freedoms of the people of India, which enjoy constitutional recognition and guarantee.1 The Supreme Court of India and State High Courts have the power to enforce Fundamental Right and is the guardian protector of fundamental rights. They are guaranteed to all Indian Citizens irrespective of their age, caste, sex and creed. In addition, the Fundamental Rights for Indians are aimed at overturning the inequities of past social practices. They have also been used to in successfully abolishing the "untouchability"; prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth; and forbid trafficking in human beings and also the forced labour. They go beyond conventional civil liberties in protecting cultural and educational rights of minorities by ensuring that minorities may preserve their distinctive languages and establish and administer their own education institutions. No democracy can function in the absence of basic rights such as freedom of speech and expression. Fundamental Rights provide standards of conduct, citizenship, justice and fair play. They serve as a check on the government. Various social, religious, economic and political problems in our country make Fundamental Rights important. In our Constitution, Fundamental Rights are enumerated in Part III from Article 12 to 35. These rights are justiciable that means that if these rights are violated by the government or by anyone else, the individual has the right to approach the Supreme Court or High Courts for the protection of his/her Fundamental Rights. Our Constitution does not permit the legislature and the executive to curb these rights either by law or by an executive order. The Supreme Court or the High Courts can set aside any law that is found to be infringing or abridging the Fundamental Rights. Some of the Fundamental Rights are also enjoyed by foreigners, for example, the Right to Equality before Law and Right to Freedom of Religion are enjoyed by both i.e. citizens as well as foreigners.

www.FundamentalRights,ConstitutionofIndia.htm

The Fundamental Rights though justiciable are not absolute that is the Constitution empowers the government to impose certain restrictions on the enjoyment of our rights in the interest of public good. Seven Fundamental Rights were enshrined in the Constitution of India. Originally, the right to property was also included in the Fundamental Rights; however, the Forty-fourth 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. Since then, Right to property has been made a legal right. 2Also Freedom of speech and expression, generally interpreted to include freedom of the press, can be limited "in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence". There are now six Fundamental Rights:1. Right to Equality 2. Right to Freedom 3. Right against Exploitation 4. Right to Freedom of Religion 5. Cultural and Educational Rights, and 6. Right to Constitutional Remedies. Recently by the 86th Amendment Act, the Right to Education has been included in the list of Fundamental Rights as part of the Right to Freedom by adding Article 21(A) but The Right of Children to Free and Compulsory Education Act, a law to enable the implementation of the fundamental right, was passed by Parliament last year. Both the Constitutional amendment and the new law came into force from April1, 2010.

We will now study these rights one by one.

http://www.kisaso.com/freepedia/fundamental_rights_of_india/

Article 12 In this article, "the State" includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.3 Article 13 All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.4 In this article, unless the context otherwise required, "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. Nothing in this article shall apply to any amendment of this Constitution made under article 368. (1) Right to Equality:-

Equality Before Law (Article. 14) :The state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.

3 4

Article 12 of Indian Contract Act ,1872 Article 13 of Indian Contract Act ,1872

It means all citizens enjoy equality before law. All enjoy equal protection of law. Equality before law, however, does not mean absolute equality or equality is among the unequal. It means equality or equality among the unequal5. It means equality among the similarly placed people. It does not prohibit the classification of persons into different groups.6

Prohibition of discrimination (Article. 15) :The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) Access to shops, public restaurants, hotels and places of public entertainment; or (b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public. (c) Nothing in this article shall 9prevent the State from making any special provision for women and children. (d) Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.7 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 of Opportunity (Article. 16.) :(a) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(http://www.un.org/cyberschoolbus/humanrights/declaration/7.asp)

6 7

Article 14 of Indian Contract Act ,1872 Article 15 of Indian Contract Act ,1872

(b) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (c) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (d) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (e) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.8

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 society9. 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.

Abolition of Untouchables (Article. 17) :Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be offence punishable in accordance with 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.
8 9

Article 16 of Indian Contract Act ,1872 http://constitutionindia.tripod.com/id11.html

It is basically for eradicating the evil practice of untouchables in India, the Constitution has abolished untouchable. Practice of untouchable in any form is an offence publishable by law. All citizens of India now enjoy equal status.

Abolition of Titles (Article. 18) :(a) No title, not being a military or academic distinction, shall be conferred by the State. (b) No citizen of India shall accept any title from any foreign State. (c) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State. (d) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.10 The Constitution prohibits the state from conferring any title on citizens. However honours for military or academic distinctions can be given. This right does not prevent the grant of military decorations such as Parma Vir Chakra, Mahavir Chakra. Vir Chakra and Ashok Chakra.11

(2) Right to Freedom:

Under a set of four Articles (19- 22), the constitution grants the Right to Freedom to the entire citizen. These articles together constitute the charter of freedoms of the people.

Fundamental Freedoms of Citizens (Art. 19) :All citizens have the right to: (i) Freedom of speech and expression. (ii) Freedom of assembly (iii) Freedom to form associations.
10 11

Article 18 of Indian Contract Act ,1872 http://www.civilserviceindia.com/subject/Law/notes/fundamental-right-education.html

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(iv) Freedom of movement (v) Freedom to reside and settle (VI) Freedom of profession, occupation, trade or business.

Protection against Arbitrary conviction (Article. 20):The constitution provides protection against arbitrary conviction in cases of offences committed by a person. It lays down that: No person can be punished except for a violation of law. No person can be subjected to a punishment greater than the one prescribed by law. For one crime one punishment can be given. No person accused of any offence can be forced to give evidence against him.12

Protection of Life and Liberty (Article. 21):It grants protection to the life and liberty of citizens as well as noncitizens. It says, No person can be deprive of his life and liberty except according to the procedure established by law.13

Protection against Arrest and Detention (Article. 22):The Constitution also provides protection against arbitrary arrest and detention. Any person arrested by the police enjoys certain protections. He has a right to be informed about the grounds of his arrest. He has the right to consult his lawyer. He is to be produced before the nearest magistrate within a period of 24 hours of his arrest.

The Right to Freedom, like the right to equality is also not absolute. It is also subject to reasonable limitations. These freedoms have to be used without any violation of public order, public health, morality and security of state. Further, in respect of freedom of profession, trade, and business, the state can prescribe professional or technical qualifications. The State can also nationalize any industry or business.14

12 13

Article 20 of Indian Contract Act ,1872 Article 21 of Indian Contract Act ,1872 14 Article 22 of Indian Contract Act ,1872

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(3) 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 Beggar (forced labour), 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. Beggar, 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.

Prohibition of Traffic in human beings and forced Labour (Article 23):This right prohibits sale and purchase of human beings It also prohibits beggar or forced labour. Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on ground only of religion, race, caste or class or any of them.

Prohibition of Employment of Children (Article 24) :No child below the age of fourteen years can be employed to work in any factory or mine or any other hard harmful job.

(4) Right to Freedom of Religion :-

Freedom of Profession and Propagation of Religion (Article 25):(a) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (b) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law12

i.

regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

ii.

providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.15

[Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.]

[Explanation II: In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.]

Freedom to Manage Religions Affairs (Article 26):Every religion has the right to establish and maintain religions institutions. Manage its own affairs; Own and acquire movable and immovable property; and administer its property in accordance with law. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to (a) establish and maintain institutions for religious and charitable purposes; (b) manage its own affairs in matters of religion; (c) own and acquire movable and immovable property; and (d) administer such property in accordance with law.16

Freedom from paying taxes for the promotion of any Religion (Article 27):No person can be compelled to pay any tax for the promotion or maintenance of any particular religion.

15 16

Article 25 of Indian Contract Act ,1872 Article 26 of Indian Contract Act ,1872

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Freedom to attend or abstain from religious functions (Article 28):The Constitution prohibit is the imparting of religious instructions in any educational institution. No student can be forced to participate in a religious worship that may be conducted in his institution. The right to religious freedom, like other fundamental rights, has certain limitations. This right can be exercised subject to public order, morality and public health. It does not prohibit the introduction of social reforms. Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is minor, his guardian has given his consent thereto.17

(5) Cultural and Educational Rights :

Right to maintain Language, Script and Culture (Article 29):Any section of the citizens having a distinct language, script or culture of its own has the right to maintain the same. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Right to establish and administer educational institutions (Article 30):(a) All minorities, whether based on religion or language, have the right to establish and administer their own educational institutions of their choice.
17

http://www.iloveindia.com/constitution-of-india/fundamental-rights.html

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i.

In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(b) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.18

(6) 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 rights. These rights are habeas corpus, mandamus, prohibition, quo warranto and certiorari. 19 The Habeaus Corpus provides a remedy against wrongful detention of a person. By it the court directs the detaining authority to produce the detained person in the court and to explain the cause of his detention. The Mandamus, by it the court can order an inferior authority to d an act, which falls within its jurisdiction. The Prohibition, The court can prohibit an inferior authority from doing an act, which does not falls in its jurisdiction.

18 19

Article 30 of Indian Contract Act ,1872 http://constitutionindia.tripod.com/id11.html

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The Quo Warranto, the court can restrain a person from acting in a public office to which he is not entitled. The Certiorari, by it, the court can order an inferior authority to transfer the matter to it or to some other authority for its proper consideration. It provides legal protection to Fundamental Rights. Right to Constitutional remedies is the very soul of Indian Bill of Rights. When a national or state emergency is declared, this right is suspended by the central government.

FUNDAMENTAL DUTIES

A citizen should have duties and responsibilities for his country. He should try to do the public good. He should control his conduct on the light of the good of his country. He should exercise his rights with proper judgment and obey the law of road and the like. He should try to build himself to do the best service for the country. He should have patriotism and fellowfeeling. As a citizen, he should know his responsibility to discharge his duties. Fundamental Duties of India are guaranteed by the Constitution of India in Part IV and are identified as the moral obligations that actually help in upholding the spirit of nationalism as well as to support the harmony of the nation. These duties are designed concerning the individuals and the nation. However, these fundamental duties are not legally enforceable. Furthermore, the citizens are morally obligated by the constitution to perform these duties. These Fundamental Duties were added by the 42nd Amendment Act in 1976. Article 51-A of the constitution provides ten Fundamental Duties of the citizen. The Fundamental rights have been provided at the cost of some fundamental duties. These are considered as the duties that must be and should be performed by every citizen of India. These duties can be classified accordingly as relating to the environment, duties towards the state and the nation and also
16

towards self. However, the fundamental duties are non-justiciable, and the main purpose of incorporating is to encourage the sense of patriotism among the country`s citizens. Furthermore, Fundamental Duties of citizens serve a useful purpose. In particular, no democratic polity can ever succeed where the citizens are not willing to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties and coming forward to give their best to the country. Also the most important task is to reconcile the claims of the individual citizen and those of the civic society. So, it is important to orient the individual citizen to be conscious of his social and citizenship responsibilities and so shape the society that we all become solicitous and considerate of the inalienable rights of our fellow citizens. Hence, awareness of our citizenship duties is as important as awareness of our rights. Every right implies a corresponding duty but every duty does not imply a corresponding right. Man does not live for himself alone. He lives for the good of others as well as of himself. The international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights include reference of such fundamental duties. Fundamental Duties are such commitments that expand to the citizens as well as the state at large. The fundamental duties of the land also intend to uphold the right of equality of all individuals, defend the environment and the public property, to build up scientific temper, to disown violence, to struggle towards excellence and to offer compulsory education. In addition to all this, the 11th Fundamental Duty of the country was added in the year 2002 by the 86th constitutional amendment which states that `every citizen who is a parent or guardian, to offer opportunities for education to his child or, as the case may be, ward between the age of six and 14 years.20

These

fundamental

duties

are

defined

as:-

It shall be the duty of every citizens of India21:

To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

20 21

http://constitutionindia.tripod.com/id11.html http://constitutionindia.tripod.com/id11.html

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To cherish and follow the noble ideals which inspired our national struggle for freedom;

To uphold and protect the sovereignty, unity and integrity of India; To defend the country and render national service when called upon to do so; To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

To value and preserve the rich heritage of our composite culture; To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

To develop the scientific temper, humanism and the spirit of inquiry and reform; To safeguard public property and to abjure violence; To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

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Conclusion

Fundamental Rights protect and safeguard the dignity and status of the citizens and are justiciable. These Rights are not absolute, reasonable restrictions can be imposed on these rights in the interest of peace, national defence, morality, common good and good relations with other countries. So we all as the citizens of India should have these rights and we should also be aware of the consequences if we use them in any wrong manner. Also while enjoying these rights we should also have some responsibilities towards our nation in the form of our fundamental duties and should do them with equal responsibilities. Finally it can be concluded that for the welfare of every individual and of the complete nation we need both the fundamental rights and the fundamental duties and we should be properly aware about both of them also.

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BIBLIOGRAPHY

1. Main Act: The Indian Contract Act, 1872 2. References: Elements of mercantile law by N.D.Kapoor 3. Online Reference:

www.wikipedia.com

http://constitutionindia.tripod.com/id11.html www.FundamentalRights,ConstitutionofIndia.htm

http://www.kisaso.com/freepedia/fundamental_rights_of_india/

4. Dictionary Referred:

Oxford English Dictionary Blacks Law Dictionary

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