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Tag: fundamental rights

Bijoe Emmanuel v. State of Kerala (1986)

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Background: Three siblings—Bijoe, Binu, and Bindu Emmanuel—were expelled from a school in Kerala for not singing the national anthem (Jana Gana Mana) during the school assembly. The children, belonging to the Jehovah’s Witnesses faith, stood respectfully during the anthem but did not sing it, citing religious beliefs. Key Issue: Whether the expulsion of the students for not singing the national anthem violated their fundamental rights under the Indian Constitution, specifically: Article 19(1)(a) – Freedom of speech and expression. Article 25(1) – Freedom of conscience and free profession, practice, and propagation of religion. Arguments: State’s Argument: The State of Kerala contended that singing the national anthem was a fundamental duty and a sign of respect towards the nation. Petitioners’ Argument: The children argued that their faith did not permit them to sing the anthem, although they stood respectfully while it was being played. Supreme Court’s Observations: The Court recognized the children’s right to freedom of speech and expression, which includes the freedom not to sing. It emphasized that the children’s respectful silence during the anthem indicated that they did not disrespect the national anthem. The Court also highlighted that Article 25 protects the freedom to practice one’s religion, and coercing the children to sing would violate this right. Judgment: The Supreme Court ruled in favor of the Emmanuel siblings, holding that their expulsion violated their fundamental rights under Article 19(1)(a) and Article 25. It was stated that no constitutional law requires citizens to sing the national anthem; standing in respect suffices. Key Takeaways: This case established that freedom of expression includes the freedom to remain silent. It reinforced the principle that personal beliefs and conscience should be respected, as long as they do not disturb public order. The judgment emphasized tolerance and respect for diverse beliefs, shaping the interpretation of religious freedom in India. Impact: The decision is a landmark in upholding individual rights over forced conformity. It set a precedent for balancing national pride with personal beliefs, highlighting that true patriotism respects diversity and individual rights. Conclusion: The Bijoe Emmanuel case is a reminder that the Indian Constitution protects the rights of individuals to express their beliefs freely, ensuring that faith and conscience are not compromised in the name of nationalism.

Indian Constitution

Breach Of Human Rights

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      Breach Of Human Rights Here we talk about human rights, all human beings are born free and equal in dignity and rights. In these Human rights, some rights are also included as the rights to life and liberty, freedom of opinion and expression, right to freedom of speech right to work and education, and many more. Every human being has these rights by birth. In India, every citizen of the country has six fundamental rights by birth which are given by the constitution. And no one has the right to breach someone’s rights. But somewhere, in today’s time period, many kinds of cases exist in a society where people of the minority are restrained by the majority to freely live their lives and enjoy their rights. Introduction When we talk about human rights, we should know about what is human rights and how many kinds of rights human beings have. Every human being has 30 kinds of human rights which are defined by the Universal Declaration of Human Rights. Fundamental rights are also included which are given by the constitution of India to every citizen of India. Fundamental Rights Right To Equality The right to equality (Articles 14 to 18 ) prohibits inequality on the basis of caste, religion, place of birth, race, and gender. It ensures equal rights for all citizens. Right To Freedom These rights (Article 19,20,21A,22 ) are freedom of speech, freedom of expression, and freedom of movement throughout the territory of our country. Right Against Exploitation Right against Exploitation (Articles 23 and 24) concerns human trafficking. Cultural And Educational Rights (Articles 29 and 30 ) Cultural rights protect the rights of cultural religious and linguistic minorities by enabling them to conserve their heritage and protecting them against discrimination. Educational rights ensure education for everyone irrespective of their caste, gender, religion, etc. Right To Constitutional Remedies The right to constitutional remedies (Articles 32 to 35 ) empowers the citizens to move to a court of law in case of any denial of the fundamental right. The Preamble Of The Constitution Of India also mentions these factors like, justice, Liberty, Equality, and Fraternity to secure all its citizens. But nowadays we can see in some places minorities‘ rights are violated by the majority. like In some places people of scheduled caste and scheduled tribe are restricted from going to religious places by uppercast people There are lots of cases like these in India, including the whole world. Background When we go into the debate on this kind of topic or subject, landmark judgments play a wide role in understanding the history behind it. These judgments opened up the scope for changes in the context of the future. A recent hijab ban case and a meat ban case are some of them. In these two cases, minorities claimed that their fundamental rights were violated by the majority & authority of India. AISHAT SHIFA VS. THE STATE OF KARNATAKA & ORS. On January 1, when some Muslim students of a college in Karnataka’s Udupi were not allowed to attend classes wearing a hijab as the dress was against the prescribed, norms of the college. In this case, Karnataka High Court bench gave references to many landmark judgments where the word ‘ SECULAR ‘ has been defined. The word Secular means that the citizens have complete freedom to follow and practice any religion. The word ‘ SECULAR ‘ after being added in the preamble was also considered but a three-judge bench judgment of this court reported as Ziyauddin Burhanuddin V. Brijmohan Ramdas Mehra & Ors. This court was considering an appeal against the setting aside of the election of the appellant under The Representation Of People Act, 1957 to the Maharashtra state assembly on the grounds of speeches made by him in the course of the election campaign The term ‘SECULAR’ was also considered by a nine judges bench of this court reported as R Bommai & Ors V. Union Of India & Ors. The court held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule. In this context, Muslims also gave references to the Quran’s Ayah in which the importance of hijab is mentioned. The Quran says “ And not display their beauty except what is apparent and they should place their khumur over their bosoms ’’ (24:31). ‘Khumur means the veil covering the head ’. The second verses is “ O Prophet, say to your wives, your daughter, and the women of the believers that they should let down upon themselves their jalabib.’’ (33:59).’ jalabib means a loose outer garment, as wide dress.’ Meat Ban Case The recent controversy over a ban by a local mayor on selling Meat Over nine days during a Hindu religious festival in India’s Capital is illegal and violates the constitution, our research found. similar attempts made over the last decade in five other states have been struck down by the courts. The ban is, essentially, some argue, a majoritarian writ. the people of the minority said that this act violated their fundamental right, the right to freedom which is inherent in (Art. 19, 20, 21& 22). Observations Of Breach Of Human Rights All human beings have human rights which ensures freedom for all human beings in an equal manner. when we talk about equality before the law it’s required to ensure equality to every citizen in an equal manner. the word ‘ SECULAR ’ mentioned in the Preamble Of India defines India as a secular country where every citizen has the right to follow their religion freely and they are free to practice any religion. The people should also know this thing that when they talk about their fundamental rights they should also respect another ‘s rights. Conclusion The debate on this subject concluded that the Breach of human rights is an infringement of the Constitution. Where there people of the country have no right to freedom then, that state becomes a tyrant….

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Human Rights, Indian Constitution

Article 368 Amendment of Constitution

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Abstract To govern a country requires laws framed and followed. These laws which describe the power and limitations of Government and the principal functions of the organs of Government, set out the framework of Government, such laws are known as Constitutional laws, written in a Constitution. As laws framed today may be good for the present situation but may not be good the for future, they lose their efficacy according to the changes in situation and time. Laws require changes according to time. So, our Constitution provides the provisions to make amendments in our Constitution concerning time. What are those provisions, how do they come into force, and how does the Supreme Court interpret these laws? What is the theory of the Basic structure of the Constitution? Introduction Every law needs to be modified according to the requirements of time and situation. If laws are not changed according to time it will result in revolution and other illegal methods for changes in laws will be followed. Art. 368 of the Constitution of India provides the provisions of amendment of the Constitution of India. As we know there are two kinds of Constitutions in the world. One is a Written Constitution and the other is an Unwritten Constitution. Written constitutions are rigid and amendments are difficult. Whereas the Unwritten Constitution is not so rigid. The Constitution of India is a written Constitution and a federal one. Provisions of amendment in the federal Constitution are more complex in comparison to the Unitary Written Constitution. Our Indian Constitution provides unique provisions of the amendment. For amendment in the Union’s subject, the provisions are different from the provisions of amendment in the state’s subject. The Constitution of India provides three different ways for the Amendment of the Constitution. The Supreme Court has given the principle of basic structure concerning the amendment of the Constitution. Necessity for Amendment of Constitution The provisions for amendment of the Constitution are made to overcome the difficulties that may be encountered in the future in the working of the Constitution. If no provisions were provided for the amendment of the Constitution, the people would have recourse to extra-constitutional methods like a revolution to change the Constitution. As discussed above the federal written Constitution are rigid. The framers of the Indian Constitution were keen to avoid excessive rigidity and were anxious to have a document that could grow with the growth of the Nation and adapt itself to the changes in need and circumstances of a growing Nation. But the framers of the Indian Constitution were also aware that if the Constitution was so flexible it would be a playing of whims and caprices of the ruling party. they adopted a middle course. It is neither too rigid to admit necessary amendments nor too flexible for undesirable changes. For amendment the various Articles of the Constitution are divided into three categories: Amendment by Simple Amendment by Special By Special Majority and Ratification of Ways of Amendment of Constitution of India [Article – 368] As discussed above our Indian Constitution provides three different ways to amend the Constitution of India. These are: Amendment by Simple Amendment by Special By Special Majority and Ratification of 1  – Amendment by Simple Majority: The amendments contemplated in Articles 5, 169, and 239-A, can be made by a simple majority. 2  – Amendment by Special Majority: Article of the Constitution which can be amended by Special Majority as laid down in Article 368. All Constitutional amendments, other than those referred to above, come within this category and must be effected by a majority of not less than 2/3 of the members of that House present and voting. 3  – By Special Majority and Ratification of States: The States are given a special voice in the amendment of the State list subject to Schedule VII of the Constitution. Procedure for Amendment of Constitution: It must be passed by each House by a majority of the total membership of that house and by a majority of not less than 2/3 of the members of that House present and voting. a Bill which seeks to amend the provisions mentioned in Article 368 which requires in addition to the special majority mentioned above the ratification by 1/2 of the States. Article 368, however, does not constitute a complete code. The process of amending the Constitution is a legislative process governed by the rules of that process. Amendment of Fundamental Rights and The Basic Structure of the Constitution The question of whether fundamental rights can be amended under Art. 368 came for the Supreme Court in Shankari Prasad vs. the Union of India. The Supreme Court held that fundamental rights can be amended by the use of Art. 368 of the Constitution of India. In Sajjan Singh vs. State of Rajasthan, again this question arises as to whether fundamental rights can be amended by the procedure of Article. 368. The Supreme Court approved the majority judgment of Shankari Prasad’s case and held that the word “amendment of Constitution” means an amendment of all the provisions of the Constitution. Then, in Golak Nath vs. State of Punjab, the question arises, the Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision of Shankari Prasad’s case and Sajjan Singh’s case and held that Parliament had no power from the date of this decision to amend PART III of Constitution. But after that, the Parliament brought the 24th Amendment Act, of 1971 which states that Parliament has the power to amend Part III of the Constitution of India. Then came the famous case of Keshvananda Bharti vs. State Of Kerala also known as the Fundamental Rights case, in this case, the Supreme Court gave the famous theory of the Basic Structure of the Constitution. The Supreme Court by majority overruled the Golak Nath’s case which denied the Parliament to amend Part III of the Constitution. The majority held that Article. 368 even before the 24th Amendment Act contained the power…

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Indian Constitution

Fundamental Rights And Its Significance To Establish Democracy

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Introduction The constitution of India, 1950 as of 2021, there are 25 parts with 448 articles and 12 schedules. This chapter of the constitution of India is very well described as the Magna Carta of India. Magna Carta term is derived from the Latin language meaning “Great Charter” and it holds great power because it was the first document to put in writing that no one was above the law not even the King. The inclusion of this chapter in the constitution is by the trend of modern thought, the idea is to preserve that which is an indispensable condition of a free society. The aim of having fundamental rights declares that certain elementary rights, such as the right to life, liberty, freedom of speech, freedom of faith, and so on, should be regarded as unalterable under all conditions and that the shifting majority in Legislation of the country should not have a free hand in interfering with these fundamental rights. History  As early as 1215 the English people exacted an assurance from King John for respect for the ancient liberties. The Magna Carta is evidence of their which is written document. Thereafter from time to time, the King had acceded to many rights to his subjects. In France, the Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable, and sacred rights of man. Following the spirit of the Magna Carta of the British and the declaration of the rights of the man and the citizen of France, the Americans incorporated the Bill of Rights into their constitution. The Americans were the first to give the Bill of Rights a constitutional status. Thus, when the constitution of India was being framed the background for the incorporation of the Bill of Rights was already present. The framers took inspiration from this and incorporated a full chapter in the Constitution dealing with fundamental rights. Schedule of Fundamental Rights The fundamental rights are incorporated in the Indian constitution and divided into the following six groups: – Right to Equality (Art 14-18) Right to Freedom (Art 19-22) Right against Exploitation (Art 23-24) Right to Freedom of Religion (Art 25-28) Cultural and Educational Rights (Art 29-30) Right to Constitutional Remedies (Art 32-35) The 44th Amendment has abolished the Right to property as a fundamental right as provided in Art 19(1)(f) and Art 31 of the Constitution, and hence Art 19(1)(f) and 31 has been omitted. Salient Features of Fundamental Rights Comprehensive and Detailed: The rights in the Part III of the constitution are very elaborate. Each Article has been described with its scope and limitations. Lack of social and Economic rights: The Constitution guarantees only civil rights and freedoms. Rights like the Right to work, the right to health, and the Right to Social Security have not been included in the Fundamental rights. Rights are qualified: The fundamental rights of people are not absolute except the right against untouchability. They are qualified with limitation and reasonable restriction in the collective interest of society. While describing the scope of each right, the Constitution also describes its limitations. These have been laid down to protect the public health, public order, morality, and security of India. Some exceptions are also provided to fundamental rights through their non-applicability to members of security and law and order-related forces, during martial law and, certain laws necessary for socio-economic reforms. Enforceability of Rights: Fundamental rights have been made Justiciable. Justiciable rights mean if any of these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or high courts for protection. There are elaborate instruments to protect these rights, such as the right to Constitutional remedy, Public Interest Litigation, and Human Rights commissions. Constitutional Superiority of Fundamental Rights: The Fundamental Rights of the citizens are superior to ordinary laws and the Directive Principles of the State when the President withdraws it. Importance of Fundamental Rights Fundamental Rights are deemed essential to protect the rights and liberties of the people against the Government. They are limitations upon all the management of the Government, legislative as well as executive and they are essential for the preservation of public and private rights, notwithstanding the representative character of political instruments. Speaking about the Importance of Fundamental Rights in the historic judgment of Manika Gandhi Union of India, Bhagwati, J., observed: “The Fundamental rights represent to protect the dignity of the individual and create conditions in which every human being can fully develop his personality. They weave a ‘pattern of guarantee on the basic structure of human rights, and impose a negative obligation on the State not to encroach on individual liberty in its various dimensions” These rights are regarded as fundamental because they are essential for the attainment of the individual or his full intellectual, moral, and spiritual status. The advocates of inclusion of these rights in the Indian Constitution vest them with a sanctity that legislators dare not to violate so easily. The Doctrine of Severability and Eclipse The doctrine of Severability: It means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not entire statute. In R.M.D.C v. Union of India (AIR 1957 SC 628), the court observed that the intention of the legislature. The doctrine of Eclipse: It is based on the principle that a law that violates fundamental rights is not nullity or void ab initio but becomes only enforceable i.e., remains in a moribund condition. Such law exists for all past transactions, for rights and liabilities incurred before the constitution came into force, and for the determination of rights of persons who have not been given fundamental rights by the constitution e.g., non-citizens (Bhikaji the state of M.P AIR 1955 Sc 781) The doctrine of eclipse applies to a post-constitutional law Article 13(2) deals with post–constitution or future laws [while clause (1) deals with pre–constitution or existing law]. It…

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Indian Constitution