Talk:Fundamental rights in India

History

Short Questions:- ▪︎Give two reasons for the inclusion of Fundamental Rights in the Indian Constitution. 2405:201:8019:E006:C0DA:6735:C88B:4C9 (talk) 06:55, 12 December 2021 (UTC)

Issues

Legal scholarship has moved way past Durga Das Basu's executive volumes, used by law undergrads in their sophomore year. There is nothing on the vibrant debates in the Constituent Assembly of India that has shaped our rights, the particular socio-political forces at play etc. The entire section on origins is a travesty with three quarters of the content being unsourced.

Section 3 to Section 8 are reproductions of Indian Constitution. In the section on critical analysis, a textbook used by 15 year old children has been used as a significant source. There are some irrelevant statements about corruption, speedy trials, and a rambling about how India "is its people, not its land." Two very short sections on amendments and right to privacy that has got barely any legs to stand upon.

The section on "Significance and characteristics" is equally perplexing with a host of trivia and much is unsourced. TrangaBellam (talk) 18:53, 24 January 2022 (UTC)

GA Reassessment

The following discussion is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

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This discussion is transcluded from Talk:Fundamental rights in India/GA1. The edit link for this section can be used to add comments to the reassessment.

Result: Delisted. ~~ AirshipJungleman29 (talk) 20:04, 9 January 2023 (UTC)

Issues

Please see this note. TrangaBellam (talk) 18:58, 24 January 2022 (UTC)

TrangaBellam, just wanted to make sure you haven't forgotten about this. If the issues you pointed out haven't been resolved, feel free to delist the article using the instructions under "individual reassessment" at WP:GAR. Extraordinary Writ (talk) 07:25, 2 October 2022 (UTC)

TrangaBellam, please either keep or delist this article per WP:GAR and EW above. This GAR has been open for almost a year. ~~ AirshipJungleman29 (talk) 19:18, 9 January 2023 (UTC)

I apologize. Will delist asap. TrangaBellam (talk) 19:46, 9 January 2023 (UTC)

The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Edits to the lead section

Link to diff

@Kautilya3 had reverted my leads explaining my reversions were legalistic. Here is my response

1. The article suffers from many issues - including inaccuracies. My attention was invited through the lead notice 2. The lead should explain what is "fundamental" to the rights - the Indian constitution's guarantee is not absolute and it is important to mention this in as lucid a manner as possible. 3. There are not 6 rights, but 6 groups of rights - the article seems to have copy-pasted from a previous link 4. The link to Indian constitution in the earlier version was broken. Citations were wrong and in wrong places 5. There were other rephrasings that were done

Given the substance of the above problems, I have reverted to my version. The user is free to edit from here - but please dont blank without responding to specific issues

Many thanks for your attention

Chancemill (talk) 15:03, 15 May 2022 (UTC)

Please explain how you revised lead paragraph satisfies MOS:BEGIN.

Also, please provide the WP:RS you have used to base this content on. -- Kautilya3 (talk) 15:29, 15 May 2022 (UTC)

Thanks - I have currently worked on only the first section, which itself had many problems. I recognize the article's lead paragraph needs discussion on "scope of the article" - but I continue to think there are several important points that need to come upfront.

I will go line-by-line, so that you get a sense on how I am thinking. I am returning to Wikipedia after long, so will also benefit from any feedback from you.

• Fundamental rights in India are the rights guaranteed under Part III (Articles 12-35) of the Constitution of India = retained this line from earlier version. Fixed citation. I believe this agrees with the First statement principle.

• However, a question now arises on what is the meaning of guarantee. Fundamental rights, in India (unlike other jurisdiction like the United States) are actually not unalienable or absolute. They are not much different from any other rights in many areas - including the fact that they can be suspended, repealed, or restricted. Therefore, the word guarantee is liable to be mistaken (e.g. other rights are not "guaranteed", or that the "guarantee" is absolute). For an article on fundamental rights - this needs to be stated upfront. The difference arises from three different aspects = how in process it is different, how in substance it is different, and how in spirit it is different.

• they can be directly appealed to the Supreme Court - this is really the crux of it. You need not wait for the long process of law with the lower courts to get fundamental rights appealed. So this explains my second and third sentences.

*The process point - *Fundamental rights are different from any other rights provided under the Constitution, in that they are directly justiciable by the Supreme Court of India. Under Article 32 of the Constitution, any aggrieved person[1]: 50 may directly approach the Supreme Court, bypassing lower courts for remedies.

• However, fundamental rights, as mentioned earlier are not unalienable - they can be suspended, restricted and repealed. The next difference comes because the constitution provides for an Article 13 that can provide a direct action by the Supreme Court to strike down a law - instead of only passing a specific judgment.

• Under Article 13, the courts can directly strike down any law (or any other form of authority having the force of law), as unconstitutional, if found violative of fundamental rights - which it cannot do for any other law (under other forms of law, it relies on common law judgments or legislative precedence, or due process check) to provide a case-by-case opinion. Therefore my next two sentences.

• The substance point - 'While not absolute, subject to amendments and reasonable restrictions, fundamental rights are held to a higher standard by the constitution. Under Article 13, any laws (including de-facto laws in the form of "Ordinances, orders, bye-laws, rules, regulations, notifications and customs" having the force of law) can be struck down by the courts as unconstitutional.''

Now, there is a third aspect - which has been held by the courts of law in spirit - which is that even where fundamental rights can be repealed by the Legislature (and we need to recognize how), the Supreme Court has asserted its power to enforce the "basic structure argument" (and this is the point based on which the Kesavananda Bharati judgment was provided). And therefore my next three lines assert how difficult it is to amend fundamental rights, and how even after such an amendment they are liable to be struck down, if the courts of law hold the amendments violative of basic structure principle. And therefore the next three statements

• The spirit point - 'Fundamental rights can only be amended by a special majority of the Parliament under Article 368 [1]: 259 . However, as per the Basic Structure Doctrine, any such amendments are still subject to review by the Indian courts. Pursuant to the Kesavananda Bharati judgement, challenges to fundamental rights through amendments were deemed to invite higher scrutiny under the "Basic Structure" test, with the Supreme Court asserting its rights to strike down laws that fail the test.'

To illustrate how a fundamental right differs from a legal right - the article already had Right to Property (dead link fixed), but this passage was clumsily written. I have re-written this.

And that's all I did to the first - section - now may be the sentence construction can be edited, sentences broken (which I will check again, in a bit) but the earlier version was woefully inadequate to get any nuance on this topic (and if you read the rest of the article, there are many more issues and that explains the article warning)

Also - the other thing done was to amend "six fundamental rights" to six sub-groups - these are not six rights, but six sub-groups of rights. For example, right to equality actually refers to 5 different rights and principles - Equality before law (Article 14), Prohibition of discrimination on specific grounds (Article 15), Equality of opportunity in public employment (Article 16), Abolition of Untouchability (Article 17) and Abolition of titles (Article 18)

The above distinction is important because certain fundamental rights (at an article level) applies to citizens only, while others apply to both citizens and other nationals alike. This nuance is currently missing from the entire article, which I hope to bring in a subsequent section. But, at this point - if we restrict our focus to the concepts, we will miss to understand this nuance later

Coming to the source, The PDF cited in the previous citation is a dead-link (also which used to refer to the earlier version of the constitution). The current live version of the document is the version amended as of November 2021 - I have directly referred to the constitution document - which is maintained by the Government of India

The citations are in-line in specific pages of the constitution document itself, which by itself explains in each article the interpretation above given.

Hope these are elaborate and specific enough to understand. Happy to hear your thoughts

Chancemill (talk) 17:12, 15 May 2022 (UTC)

Chancemill, thanks for your response. Unfortunately, you have completely ignored my second question. What RS have you used to base this content? Should I take your silence as meaning that you haven't used any? In other words, your edit was basically WP:OR?

Your edit basically gives WP:UNDUE prominence to inessential detail. I can see that you are yourself convinced that it is essential detail. But that is not enough for Wikipedia. You need to be able to convince the others.

The original version was in line with MOS:BEGIN because it directly addressed what "fundamental rights" are. Your version is talking around them for two paragraphs before getting down to business. Moreover, you claim that fundamental rights are so-called because they are justiciable by the Supreme Court. On the other hand, if you look at the NCERT text book "Constitution at Work", there is no mention of the Supreme Court in the introduction of the topic. I am afraid you are confusing the mechanics for substance. Your content is more like a lawyer's manual rather than an encyclopaedic article.

I suggest you consult a wide range of RS before attempting to revise the lead again. -- Kautilya3 (talk) 23:10, 16 May 2022 (UTC)

Let metry and come back to you on the remaining

But can you let me know why you have let the broken link stand'? https://en.wikipedia.org/wiki/Fundamental_rights_in_India#cite_note-1 (Link to specific diff)

I explicitly mentioned that I corrected this link - but you seem to have ignored this and conducted a mass revert.

It seems absurd to me that an article on fundamental rights does not even refer to the correct legal document of the Indian constitution. Chancemill (talk) 01:13, 17 May 2022 (UTC)

And on your specific point that you seem to have made on NCERT

- please refer to Page 40-41 of NCERT textbook (https://ncert.nic.in/ncerts/l/keps202.pdf) - Page 15/16 of 25 and I quote

"One would agree that our Constitution contains a very impressive list of Fundamental Rights. But merely writing down a list of rights is not enough. There has to be a way through which they could be realised in practice and defended against any attack on these rights. Right to constitutional remedies is the means through which this is to be achieved. Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violationn. The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights."

I am also hesitant to use a primary school textbook to defend this point (but bring it up, since you feel it is good to make the counterpoint) - there are plenty of blog articles and IAS preparation exam articles that make the exact same point I mention above (but I will use none of them)

As you can see there is no Primary Research needed (or done) on this - because the constitution document under Article 13 and Article 32 of the Indian constitution directly gives this point (and as I said above this article seems to refer to every other link correctly except the live version of the constitution in its current form).

Chancemill (talk) 01:56, 17 May 2022 (UTC)

On second thoughts

I am striking the above to keep it specific - let me think more on Wikipedia:Manual of Style, which I think is your primary crib. In the meantime, I suggest you let the link get sorted above Chancemill (talk) 02:05, 17 May 2022 (UTC)

Chancemill, I have restored your version. I find it much better and elaborative than the status quo and is correct to my knowledge. Just make sure you add reliable sources, I will help find some. Akshaypatill (talk) 06:56, 17 May 2022 (UTC)

@Akshaypatill and @Kautilya3 - thank you both for your interventions - but I guess this is not concluding, and it has gone back to a 15-year old lead (that's still a couple of years after I left this place :-) ). Let me find some better places in Wikipedia to make myself useful. This article needs more eyes (and perhaps a few more people directly contributing in the article, than on the Talk Page and the Page History) but I guess there will be time. Peace gentlefolk! Chancemill (talk) 13:27, 17 May 2022 (UTC)

Inline citations

Looking at the article, large swaths of content is devoid of inline citations. It'd be useful if this could be improved — DaxServer (t · m · c) 14:17, 15 June 2022 (UTC)

Right To Education Act

I have added the seventh fundamental right "Right to Education" Asthra137 (talk) 06:13, 31 July 2022 (UTC)