The fundamental rights are included in Part III (Article 12 to 35) of the constitution of India.
In this article, the following topics will be discussed;
Features of the fundamental rights
Types of the fundamental rights
Some landmark Judiciary judgments related to fundamental rights
The concept of fundamental rights is taken (borrowed) from the constitution of the USA where it is known as the bill of rights. The fundamental rights are called as Magna Carta of the constitution.
Features of the fundamental rights:
It’s a comprehensive description of individual rights and is justifiable in nature.
Fundamental rights aim to establish a government of law and not a government of men.
Our fundamental rights are not absolute in nature but qualified in nature It means that it has some reasonable restriction to bring balance between the rights of an individual and the rights of the society.
Some of the fundamental rights are available only to Indian citizens while some are available to all person whether they are Indian citizens or foreigners.
One thing is similar in all fundamental rights that they are mainly available against the arbitrary action of the state and some are available against the private individuals.
The fundamental rights are defended and granted by the supreme court who is the guardian of the constitution.
Some of the fundamental rights are negative in character in that they place limitations on the authority of the states while some are positive in nature providing some privilege on the persons.
Some of the fundamental rights are directly enforceable while the others need to be enforced by the law made by the parliament.
Fundamental rights are not permanent but can be curtailed by parliament through Constitutional Amendment Act only (not by the ordinary act) but the basic structure of the constitution must be maintained.
Types of fundamental rights:
Six types of fundamental rights are mentioned in the constitution of India, these are;
1. Right to equality (Article 14-18)
2. Right to freedom (Article 19-22)
3. Right against exploitation (Article 23-24)
4, Right to freedom of religion (Article 25-28)
5. Cultural and educational right (Article 29-30)
6. Right to constitutional remedies (Article 32)
In the original constitution, there were seven fundamental rights but through the 44th Amendment Act the right to property under article 31 was removed and now we have only six fundamental rights (mentioned above).
Now we will discuss each article (i.e. Art 12-35) of fundamental rights one by one;
Article 12 elaborates the definition of the state.
According to article 12, The term ‘state’ includes the following;
- The Government and Parliament of India
- The Government and the Legislature of each of the States
- All local or other authorities within the territory of India or under the control of the Government of India
Article 13 says:
Any law with or in derogation of the fundamental rights will be considered inconsistent (void).
(1) Any existing law immediately before the commencement of this Constitution, if found inconsistent with the provisions of this Part (i.e. part 3 – fundamental rights), shall, to the extent of such inconsistency, be considered as void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part (i.e. part 3 – fundamental rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void.
Right to equality (Article 14 – 18):
Article 14 (it is about Equality before law): The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Here we need to differentiate between equality before the law and equal protection of the law. Equality before the law is a British origin concept which is negative in nature on the other hand equal protection law is taken from the American constitution which is positive in nature.
Equality before law provides for the absence of any special privileges for any person and equal subjection of law for everyone but in the equal protection of law it provides equality of treatment under equal circumstances and both special privileges conferred and liabilities imposed by the law itself.
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.
(2) No citizen shall be denied access to shops, public restaurants, hotels, and places of public entertainment; or the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction, or condition.
Article 16: Equality of opportunity in matters of public employment.
This means that there shall be equality of opportunity for all citizens in matters relating to the employment or appointment to any office under the State.
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.
Article 17: Abolition of Untouchability.
Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with the law.
Article 18: Abolition of titles.
- No title except military or academic distinction shall be conferred by the State.
- No citizen of India shall accept any title from any foreign State.
- 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.
- 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.
Right to freedom (article 19-22):
Article 19: It is about the protection of certain rights regarding freedom of speech
All citizens shall have the right
- To freedom of speech and expression
- To assemble peaceably and without arms
- To form associations or unions or
- to move freely throughout the territory of India
- to reside and settle in any part of the territory of India
- to practice any profession, or to carry on any occupation, trade, or business.
Article 20: Protection in respect of conviction for offences.
- No person shall be convicted of any offence except for the violation of a law in force at the time of commissioning of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
- No person shall be prosecuted and punished for the same offence more than once.
- No person accused of any offence shall be compelled to be a witness against himself.
Article 21: This article is about the protection of life and personal liberty.
No person shall be deprived of his life or personal liberty except according to the procedure established by law.
Article 22: Protection against arrest and detention in certain cases.
No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Right against exploitation (Article 23-24):
Article 23: Prohibition of traffic in human beings and forced labour.
Traffic in human beings and beggars and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
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 grounds only of religion, race, caste, or class or any of them.
Article 24: Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Right to freedom of religion (Article 25-28):
Article 25: Freedom of conscience and free profession, practice, and propagation of religion.
Subject to public order, morality, and health, and 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.
Nothing in this article shall affect the operation of any existing law or prevent the State from making any law.
Article 26: Freedom to manage religious affairs.
Subject to public order, morality, and health, every religious denomination or any section thereof shall have the right to manage their own religious affairs and can establish and maintain institutions for religious and charitable purposes;
- To manage their own affairs in matters of religion.
- To own and acquire movable and immovable property and
- To administer such property in accordance with the law.
Article 27: Freedom from payment of taxes for promotion of any particular religion.
No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28: Freedom from attending religious instructions or religious worships in certain educational institutions.
1. No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
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 a minor, his guardian has given his consent.
Cultural and educational rights (Article 29-30):
Article 29: Protection of the interests of minorities.
This article says that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script, or culture of its own shall have the right to conserve 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.
Article 30: Right of minorities to establish and administer educational institutions.
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
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.
Article 31 contained the Right to property but after the 44th Constitutional Amendment Act, the right to property was removed from the fundamental right and shifted to Article 300. Hence we can conclude that the right to property is still present in the constitution but not as the Fundamental Right rather as a constitutional right.
Now the last fundamental right is the right to the constitutional remedy provided in article 32.
Right to constitutional remedy (Article 32):
Remedies for enforcement of rights conferred by this Part.
The right to move to the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. In other words, if anybody feels that his/her fundamental rights have been violated, then he/she can move to the supreme court.
The Supreme Court shall have the power to issue directions or orders or following writs;
- Habeas corpus
- Quo warranto
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court.
Let’s see all writs
Habeas Corpus is a Latin term which means ‘to have the body’.
If a person is detained unlawfully, his relatives or friends or any person can move the Court by filing an application under Article 226 in High Court or under Article 32 in Supreme Court for the writ of Habeas Corpus. The Court on being satisfied with the contents of the application issues the writ.
Mandamus is a Latin term which means “ We Command”. Mandamus is a Judicial order issued in the form of a command to any Constitutional, Statutory, or Non-Statutory authority asking to carry out a public duty imposed by law or to refrain from doing a particular act, which the authority is not entitled to do under the law.
Prohibition literally means ‘to prohibit’.
The Writ of Prohibition is a Judicial order issued by the Supreme Court or a High Court to an inferior Court or quasi-judicial body forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested. Thus, the object of the writ is to compel inferior courts to keep themselves within the limits of their jurisdiction.
Certiorari is a Latin word which means “ to certify”.
This writ confers power on the Supreme Court and High Courts to correct the illegality of their decisions.
‘Certiorari’ is a judicial order issued by the Supreme Court under Article 32 and/or by the High Court under Article 226 of the Constitution to an inferior Court or quasi-judicial or any administrative body to transmit to the Court of records of proceedings pending therein for scrutiny and decide the legality and validity of the orders passed by them.
Quo Warranto means “what is your authority”. It is a judicial order asking a person, who occupies the public office, to show by what authority he holds the office. If it is found that the holder of the office has no valid title, then this writ is issued to him to oust from the office.
Now we will understand about the last three articles i.e. articles 33, 34 & 35.
Article 33 says that the Power of Parliament to modify/curtail the fundamental rights to those working in the armed forces or similar services.
Parliament may by law determine to what extent any of the rights shall be conferred to armed forces and others.
Article 34: Restriction on fundamental rights while martial law is in force in any area.
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, the punishment inflicted, forfeiture ordered or other act done under martial law in such area.
Article 35 Legislation to give effect to the provisions of this Part. It means that article 35 gives the power to make the laws to give effect to certain specific fundamental rights shall be based only on Parliament and not on the state legislature
Some unique cases of judiciary related to fundamental rights.
Keshav Nand Bharti Case 1973: Supreme Court held that Constitutional Amendment can be challenged on the ground if it violet fundamental rights that form the basic structure of the constitution.
Supreme Court in Menka Gandhi case ruled at right to life and personal liberty of a person can be deprived by law provided the procedure prescribed by that law is reasonable fair and just and through this case Supreme Court bring the due process of law.
Supreme Court in Puttaswamy case held at right to privacy is a fundamental right under article 21.
Indra Sawhney judgment: The Court held that the advanced sections among the OBCs like the creamy layer must be excluded from the list of beneficiaries of reservation.
Minerva Mills case: The Supreme Court held that harmony between Fundamental Rights and Directive Principle of the State Policy is necessary and also held that the Limited amending power of the Parliament is a part of the basic structure doctrine.
For any democratic country, it is necessary to have fundamental rights which are the basic rights.
It protects the individual as well as a society from the arbitrariness action of the government and provides safeguard to the people.
fundamental rights constitute the Bedrock for the democratic system in our country and it will provide moral protection and protect the minority and establish the rule of law in the country.
This article is written by;
Mr. Pankaj Kumar Gupta
(Email ID: [email protected])