Fundamental rights under the Constitution by Expert Indian lawyers

By Team Legal Helpline India, October 31, 2019

A brief write up on fundamental rights under the Indian Constitution by our expert Indian lawyers. We have in house team of expert Indian lawyers to advise on all Constitutional matters related to enforcement of fundamental rights under the Indian Constitution. Advice on writ remedies and related subjects.

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Fundamental rights under the Indian Constitution are the most important and valuable rights guaranteed to the Indian citizen which are considered the basic rights of a democracy. One of the most important fundamental rights under the Indian Constitution is enshrined under Article 19 which grants various freedoms to the citizen of the country. The article includes the following rights:

  1. Freedom of speech and expression.
  2. Freedom to assemble peacefully without arms.
  3. The Freedom to form associations or unions.
  4. Freedom to move freely throughout the territory of India.
  5. Freedom to reside and settle in any part of the territory of India.
  6. The Freedom to practice any profession or to carry on any occupation, trade or business.

Article 19 doesn’t confer an absolute or unlimited right, the clauses 2 to 6 of Article 19 empowers the State to impose “reasonable restrictions on the exercise of this right by enacting proper legislation” in the interest of the sovereignty and integrity of India.

It is necessary that the restrictions imposed by law must be reasonable and not arbitrary or of excessive nature and the onus of proving them is to the satisfaction of the court lies with the State. The restriction must strike a proper balance between the freedoms guaranteed under Article 19(1) and the social control permitted by clause (2) to (6) of Article 19.

We can however safely say that Article 19 is the most important fundamental rights under the Indian Constitution as it relates to the life and liberty of the citizen.

Freedom of Speech and Expression as Fundamental rights under the Indian Constitution

Article 19 (1) (a) guarantees freedom of speech and expression. This means every citizen is free to express his views, doubts, beliefs, convictions and opinions freely without inhibition through any mode of writing, printing, visualizing or through any mode of communication or speech.

This expression also comprises publicity, publication and right to information. Therefore freedom of press & media is also included in it. The freedom of speech end expression not only includes liberty to propagate one’s views, ideas, opinions and thoughts but also includes the right to propagate and circulate their views in front of public. The article also includes respecting dignity & integrity by including the “right to keep silence for the honor & homage given to the nation.

Reasonable limits or restriction can be imposed on the exercise of the right to freedom of speech under Article 19(2) in the interest or on the grounds of

  • Security of the State
  • Friendly relations with Foreign Countries
  • Public Order
  • Decency and morality
  • Contempt of Court
  • Defamation
  • Incitement to Offence
  • Sovereignty and Integrity of India.

FREEDOM TO ASSEMBLE AS FUNDAMENTAL RIGHTS UNDER INDIAN CONSTITUTION:

Article 19(1) (b) guarantees to all citizens of India, the right to assemble peacefully and without arms. This consequentially leads to the conferment of the Right to hold public meetings and demonstrations and take out processions peacefully. This right is, however, subject to the following restrictions.

(i) The assembly must be peaceful

(ii) It must be unarmed

(iii) Reasonable restrictions can be imposed under Article 19(3) on the right by the State in the interest of the sovereignty and integrity of India or public order.

FREEDOM OF ASSOCIATION by Expert Indian Lawyers

Article 19(1) (c) secures to all citizens to form associations and unions for pursuing lawful purposes. The associations formed would include political parties societies, clubs, companies, organizations, trade unions, etc.

The right to form association can be restricted only in the interest of public order or public morality. No association or union can be formed for any illegal or conspiratory purposes.

FREEDOM OF MOVEMENT AND RESIDENCE UNDER THE INDIAN CONSTITUTION:

The right for every citizen of India to move freely throughout the territory of India and to reside and settle in any part of the territory guaranteed under Article 19 (1) (d) and 19 (1) (e) which are really inter-linked.

Article 19 (5) provides reasonable restrictions “in the interest of the general public or for the protection of interests of any scheduled tribe’’. The objective of the clause is to remove “internal barriers within India or any of its parts”.

FREEDOM OF PROFESSION, OCCUPATION, TRADE OR BUSINESS

Article 19 (1) (g) provides that every citizen of India has the right to practice any profession, occupation. The right to carry any trade or business also includes the “freedom of closure” of such business or trade at any given point of time but for reasonable causes. No citizen can be compelled to carry it against his own wish and will under Article 19(6).

However, it can be restricted and regulated by the authority at law, therefore, State has the liberty to put reasonable restrictions on the exercise of this right for the interest of the general public and also prescribe necessary qualifications either professional or technical for practicing any particular profession. The state has the power to create a monopoly in its favor in any trade or business. But such action must be reasonable and not discriminatory.

The violation of any of the above fundamental rights under the Indian Constitution is considered as a violation of the fundamental rights of a citizen. The remedy for the enforcement of the fundamental rights under the Indian Constitution is Writ as enshrined under Article 32 of the Constitution of India to be enforced by the Supreme Court and Article 226 of the Constitution of India to be enforced by High Court.

A brief understanding of the issuance of writs for the enforcement of fundamental rights under the Indian Constitution is as under:

Mandamus: It is a writ of direction or commands to be issued by the court when any public authority is not acting. It is a writ against the inactivity of any wing of the State

Certiorari: When any administrative, judicial or quashi judicial authority has acted in contravention of law or perversely then such writ is issued for the enforcement of the fundamental rights under the Indian Constitution.

Prohibition: When any public authority is acting beyond its legal authority or powers then the affected person can approach the High Court or Supreme Court for enforcement of his fundamental rights under the Indian Constitution and seek a Prohibition from the court.

Quo Waranto: When any public authority is not appointed properly or has been appointed in violation of the rules, any person affected from the same can approach the Supreme Court or the High Court for enforcement of his fundamental rights under Indian Constitution and seek a writ of Quo Waranto directing the said public authority to show his legal authority.

Habeas Corpus: Any person for the enforcement of his fundamental rights under the Indian Constitution can approach the High Court or Supreme Court seeking the writ of Habeas Corpus when someone has been taken in illegal custody or kidnapped or vanished.

The court will issue a writ of Habeas Corpus asking the police or the person concerned to produce the body before the court which means to present the person before the court.

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