Fundamental Rights

Fundamental Rights

Fundamental Rights

About

  • The Fundamental Rights are enshrined in Part III of the Constitution (Articles 12-35).
  • Part III of the Constitution is described as the¬†Magna Carta¬†of India.
  • ‚ÄėMagna Carta‚Äô, the Charter of Rights issued by King John of England in 1215 was the first written document relating to the Fundamental Rights of citizens.
  • The Fundamental Rights:¬†The Constitution of India provides for six Fundamental Rights:
    • Right to equality (Articles 14‚Äď18)
    • Right to freedom (Articles 19‚Äď22)
    • Right against exploitation (Articles 23‚Äď24)
    • Right to freedom of religion (Articles 25‚Äď28)
    • Cultural and educational rights (Articles 29‚Äď30)
    • Right to constitutional remedies (Article 32)
  • Originally the constitution also included¬†the Right to property (Article 31).¬†However, it was deleted from the list of Fundamental Rights by the¬†44th¬†Amendment Act of 1978.
  • It is made a¬†legal right under Article 300-A¬†in Part XII of the Constitution.

Provision for Laws Violating Fundamental Rights 

Article 13 of the Indian constitution declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void.

  • This power has been conferred on the Supreme Court¬†(Article 32)¬†and the high courts (Article 226).
  • Further, the article declares that a constitutional amendment cannot be challenged (as it is not a law).
  • However, the Supreme Court in the¬†Kesavananda Bharati case (1973)¬†held that a Constitutional amendment can be challenged if it violates a fundamental right.

Writ Jurisdiction

  • A writ is a legal order given by a court of law.
  • The Supreme Court (Article 32) and the High Courts (Article 226) can issue the writs of¬†habeas corpus, mandamus, prohibition, certiorari, and quo-warranto

Features of the Fundamental Rights

  • Protected by Constitution:
    • Fundamental Rights, unlike ordinary legal rights, are protected and guaranteed by the constitution of the country.
    • Some of the rights are available only to the citizens while others are available to all persons whether citizens, foreigners, or legal persons like corporations or companies.
  • Not Sacrosanct, Permanent, or Absolute:¬†
    • They are not sacrosanct or permanent and the Parliament can curtail or repeal them but only by a constitutional amendment act.
    • The rights are not absolute but qualified.
    • The state can impose reasonable restrictions on them, however, the reasonability of the restrictions is decided by the courts.
  • Rights are Justiciable:¬†
    • The rights are justiciable and allow persons to move the courts for their enforcement, if and when they are violated.
    • Any aggrieved person can directly go to the Supreme Court in case of violation of any fundamental right.
  • Suspension of Rights:¬†
    • The rights can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
    • Further, the six rights guaranteed by Article 19 can be suspended only when there is an external emergency war or external aggression) [and not on the ground of armed rebellion (i.e., internal emergency].
  • Restriction of Laws:¬†
    • Their application to the members of armed forces, paramilitary forces, police forces, intelligence agencies, and analogous services can be restricted or abrogated by the Parliament (Article 33).
    • Their application can be restricted while martial law (military rule imposed under abnormal circumstances) is in force in any area.

The Fundamental Rights

Fundamental Rights (available to citizens as well foreigners) (except enemy aliens)Fundamental Rights available to citizens only
Equality before law.Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Protection in respect of conviction for offences.Equality of opportunity in matters of public employment.
Protection of personal life and liberty.Protection of the six fundamental rights of freedom is mentioned in Article 19.
Right to elementary education.Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth
Protection against arrest and detention in certain cases.Right of minorities to establish and administer educational institutions
Prohibition of human trafficking and forced labour.
Prohibition of employment of children in factories.
Protection of language, script, and culture of minorities.
Freedom to manage religious affairs.
Freedom of conscience and free profession, practice, and propagation of religion.
Freedom from attending religious instruction or worship in certain educational institutions.
Fundamental Rights

Right to Equality (Articles 14, 15, 16, 17, and 18)

  • Equality Before Law:
    • Article 14¬†says that no person shall be denied treatment of equality before the law or the equal protection of the laws within the territory of India.
    • The right is extended to all persons whether citizens or foreigners, statutory corporations, companies, registered societies, or any other type of legal person.
    • Exceptions:¬†As per Article 361, the President of India or Governor of states is not answerable to any court for the exercise of their powers/duties, and no civil or criminal proceedings can occur or continue against them in any court during their term of office.
      • As per article 361-A, no civil or court proceedings can occur for a person for publishing any substantially true report of either the House of the Parliament or State Legislature.
      • No member of Parliament (article 105) and State Legislature (article 194) shall be liable to any court proceedings in respect of anything said or any vote given by him in Parliament or any committee.
      • Foreign sovereigns (rulers), ambassadors, and diplomats enjoy immunity from criminal and civil proceedings.
  • Prohibition of Discrimination:¬†
    • Article 15¬†provides that no citizen shall be discriminated against on grounds only of religion, race, caste, sex, or place of birth.
    • Exception:¬†Certain provisions can be made for women, children, and citizens from any socially or educationally backward class for their upliftment (such as reservation and access to free education).
  • Equality of Opportunity in Public Employment:¬†
    • Article 16¬†of the Indian constitution provides for equality of opportunity for all citizens in matters of employment or appointment to any public office.
    • Exceptions:¬†There are provisions for reservation in appointments or posts for any backward class that is not adequately represented in the state services.
    • Also, an incumbent of a religious or denominational institution may belong to a particular religion or denomination.
  • Abolition of Untouchability:
    • Article 17¬†abolishes ‚Äėuntouchability‚Äô and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable by law.
    • A person convicted of the offence of ‚Äėuntouchability‚Äô is disqualified for election to the Parliament or state legislature.¬†The acts of offences include:
    • Preaching untouchability directly or indirectly.
    • Preventing any person from entering any shop, hotel, public place of worship, or place of public entertainment.
    • Refusing to admit persons in hospitals, educational institutions or hostels established for public benefit.
    • Justifying untouchability on traditional, religious, philosophical or other grounds.
    • Insulting a person belonging to a scheduled caste on the ground of untouchability.
  • Abolition of Titles:
    • Article 18¬†of the constitution of India abolishes titles and makes four provisions in that regard:
    • It prohibits the state from conferring any title on any citizen or a foreigner (except a military or academic distinction).
    • It prohibits a citizen of India from accepting any title from any foreign state.
    • A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the President of India.
    • No citizen or foreigner holding any office of profit or trust within the territory of India can accept any present, emolument or office from or under any foreign State without the consent of the president.

Right to Freedom (Articles 19, 20, 21, and 22)

  • Protection of 6 Rights: Article 19¬†guarantees to all citizens the six rights of freedom including:
    • Right to freedom of speech and expression.
      Expressing one’s views, opinions, beliefs, and convictions freely by word of mouth, writing, printing, picturing, or in any other manner.
    • Right to assemble peaceably and without arms.
      • Includes the right to hold public meetings, demonstrations and take out processions which can be exercised only on public land.
      • It does not protect violent, disorderly and riotous assemblies or strike.
    • Right to form associations or unions or co-operative societies.
      It includes the right to form (and not to form) political parties, companies, partnership firms, societies, clubs, organizations, trade unions or any body of persons.
    • Right to move freely throughout the territory of India.
      The freedom of movement has two dimensions, viz, internal (right to move inside the country) (article 19) and external (right to move out of the country and right to come back to the country) (article 21).
    • Right to reside and settle in any part of the territory of India.
      The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture and customs of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
    • Right to practice any profession or to carry on any occupation, trade, or business.
      It doesn’t include the right to carry on an immoral profession (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,).
  • Protection in Respect of Conviction for Offences:
    • Article 20¬†grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It provides that:
    • No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act or subjected to a penalty greater than that prescribed by the law.
    • 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.
  • Protection of Life and Personal Liberty:
    • Article 21¬†declares that no person shall be deprived of his¬†life or personal liberty¬†except according to procedure established by law. This right is available to both citizens and non-citizens.
    • The right to life is not merely confined to animal existence or survival but also includes the right to live with human dignity and all those aspects of life that go to make a man‚Äôs life meaningful, complete, and worth living.
  • Right to Education:¬†
    • Article 21 (A)¬†declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years.
    • This provision makes only elementary education a Fundamental Right and not higher or professional education.
    • This provision was added by the¬†86th¬†Constitutional Amendment Act of 2002.
    • Before the 86th¬†amendment, the Constitution contained a provision for free and compulsory education for children under¬†Article 45 in Part IV¬†of the constitution.
  • Protection Against Arrest and Detention:¬†
    • Article 22 grants protection to persons who are arrested or detained.
    • Detention is of two types, namely,¬†punitive¬†(punishment after trial and conviction) and¬†preventive¬†(punishment without trial and conviction).
    • The first part of Article 22 deals with the ordinary law and includes:
      • Right to be informed of the grounds of arrest.
      • Right to consult and be defended by a legal practitioner.
      • Right to be produced before a magistrate within 24 hours, excluding the journey time.
      • Right to be released after 24 hours unless the magistrate authorises further detention.
    • The second part of Article 22 deals with preventive detention law. Protection under this article is available to both citizens as well as aliens and includes the following:
      • The detention of a person¬†cannot exceed three months¬†unless an advisory board (judges of high court) reports sufficient cause for extended detention.
      • The grounds of detention should be communicated to the detenu.
      • The detenu should be allowed to make a representation against the detention order.

Right against Exploitation

Article 23: Prohibition Of Traffic In Human Beings And Forced Labor

(1) Traffic in human beings and begar and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable by the law.

(2) 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: Freedom Of Conscience And Free Profession, Practice, And Propagation Of Religion

(1) 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.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law ‚Äď

(a) regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice;
(b) 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.

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.

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 ‚Äď

(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property by the law.

Article 27: Freedom As To Payment Of Taxes For The 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 As To Attendance At Religious Instruction Or Religious Worship In Certain Educational Institutions

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution that 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.

(3) No person attending any educational institution recognized 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.

Cultural and Educational Rights

Article 29: Protection Of Interests Of Minorities

(1) 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.

(2) 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

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) 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.

(2) 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: Compulsory Acquisition Of Property

This Article was deleted from Part III of the Constitution by the Constitution (Forty-fourth Amendment) Act, 1978, and a modified version was inserted as Article 300A.

Article 31a: Saving Of Laws Providing For The Acquisition Of Estates, Etc.

(1) Notwithstanding anything contained in Article 13, no law providing for ‚Äď

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries, and treasurers, managing directors, directors or managers of corporations, or any voting rights of share-holders thereof, or
(e) the extinguishment or modification of any rights accruing by any agreement, lease, or license to search for, or win, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease, or license, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2) In this article, ‚Äď

(a) the expression ‚Äúestate‚ÄĚ shall, about any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenure in force in that area and shall also include ‚Äď

(i) any jagir, inam or mafia or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural laborers, and village artisans;

(b) the expression ‚Äúrights‚ÄĚ, about an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

Article 31b: Validation Of Certain Acts And Regulations

Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provision thereof shall be deemed to be void, or even to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

Article 31c: Saving Of Laws Giving Effect To Certain Directive Principles

Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

Article 31d: Saving Of Laws In Respect Of Anti-National Activities

This provision was not included in the Constitution of India 1950. It was later inserted by the Constitution (Forty-second Amendment) Act, 1976, and subsequently deleted by the Constitution (Forty-third Amendment) Act, 1977.

Right to Constitutional Remedies

Article 32: Remedies For Enforcement Of Rights Conferred By This Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), 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 under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Article 32a: Constitutional Validity Of State Laws Not To Be Considered In Proceedings Under Article 32

This provision was not included in the Constitution of India, 1950. It was inserted into the Constitution via the Constitution (Forty-second Amendment) Act, 1976, and subsequently deleted by the Constitution (Forty-third Amendment) Act, 1977.

Article 33: Power Of Parliament To Modify The Rights Conferred By This Part In Their Application To Forces, Etc.

Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to, ‚Äď

(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counterintelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for any Force, bureau, or organization referred to in clauses (a) to (c), be restricted or abrogated to ensure the proper discharge of their duties and the maintenance of discipline among them.

Article 34: Restriction On Rights Conferred By This Part 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 person in respect of any act done by him in connection with the maintenance or restoration or order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

Article 35 allows the Parliament to enact laws to give effect to the provisions of fundamental rights and to restrict their scope in certain circumstances.

Article 35: Legislation To Give Effect To The Provisions Of This Part

Notwithstanding anything in this Constitution, ‚Äď

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws ‚Äď

(i) Concerning any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33, and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this part,
and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);

(b) any law in force immediately before the commencement of this Constitution in the territory of India concerning any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.

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Right To Education (RTE Act) 2009Right to Information (RTI) Act
Rights of Persons with Disability (PwD)Pressure Groups
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