Fundamental rights are the essential human rights guaranteed by the Indian Constitution, which are enshrined in Part III of the Indian Constitution. The right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, and the right to constitutional remedies are among the six essential rights.
Fundamental rights are essential for the development of individuals to their fullest potential and for the country as a whole. They integrate an individual into society while also providing educational value, allowing a citizen to recognize the importance of all members of society. These rights have legal meaning because the Constitution allows for their enforcement, empowering citizens to preserve, respect, and uphold the rule of law.
Why these rights are Known as Fundamental Rights?
Because of two factors, these rights are known as fundamental rights:
1. They are guaranteed under the Constitution.
2. They can be sued (enforceable by courts).
3. A person can go to court if they believe they have been violated.
Fundamental Rights provided by Constitution
The following is the list of Fundamental Rights provided by the Constitution of India :
- Right to equality (Articles 14–18)
- Right to freedom (Articles 19–22)
- Right against exploitation (Articles 23–24)
- Right to freedom of religion (Articles 25–28)
- Cultural and educational rights (Articles 29–30)
- Right to constitutional remedies (Article 32)
Note: 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, 1978.
Part III Article 12 defines the term “State”
State includes the following:
- Executive and the legislative organs of Union government, state governments, Panchayats, Municipalities, district boards, etc.
- All other authorities, either statutory or non-statutory in nature.
- The SC has included even private bodies or agencies working as an instrument of the State to fall within the meaning of the term “State”.
- The term State has been defined in a wider sense to include all agencies of the government.
Article 13 Laws Inconsistent with Fundamental Rights
According to Article 13, the parliament and state legislatures are prohibited from making such laws that may infringe on or take away the fundamental rights that are guaranteed by the Indian constitution itself.
Article 13 of the constitution talks about the four principles relating to fundamental rights.
Article 13 (1) talks about the pre-constitutional laws, i.e., the day the constitution came into existence, there were many laws in the country, and when the constitution came into existence, fundamental rights did come; therefore, the laws that existed before the existence of the constitution must prove their compatibility with the fundamental rights, only then would these laws be considered valid; otherwise, they would be declared to be void.
Article 13 (2) talks about post-constitutional laws, i.e it says that once the constitution is framed and put into operation, no state can make laws that take away or limit an individual’s fundamental rights, and if they do, they will be declared null and void until the degree of the violation is determined.
Article 13 (3) talks about the meaning of law, i.e the laws, whether by-laws, notifications, rules, regulations, customs, usage, etc., that affect the legal rights of the citizens do come under the definition of law, and would be considered laws under this article.
Article 13(4) gave birth to the Basic Structure doctrine in our constitution. It prohibits the parliament from making laws or amendments that are inconsistent with fundamental rights. The doctrine mentioned above is the Basic Structure Doctrine. The Supreme Court has observed that Article 13 refers to “legislative” law (made by a legislature) and does not include “constituent law” (made to amend the Constitution).
Right to Equality (Articles 14 – 18)
The right to equality guarantees that everyone is treated equally before the law, that discrimination on numerous grounds is prohibited, that everyone is treated equally in terms of public employment, and that untouchability and titles are abolished.
Article 14 – Equality before Law
- British origin;
- It is a ‘negative concept’; “no person is above the law”.
- Absence of any special privileges – Every person irrespective of their social status is subject to the jurisdiction of courts.
- The term “Equality before Law is an element of the concept of “Rule of Law”.
Equal Protection of Law –
- Borrowed from the American constitution;
- It is a ‘positive concept’; Equal treatment under equal circumstances.
- There can be discrimination between the groups but not within the groups.
- The aims of a Welfare State require positive discrimination in favor of the less privileged.
The word ‘any person’ denoted that this right is conferred to all persons whether citizens or foreigners.
The concept of the Rule of Law lays down that the law is supreme and hence the government must act according to the law and within the limits of the law. It is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.
The Supreme Court held that the Rule of Law as embodied in Article 14 is a ‘basic feature’ of the constitution.
Article 15 – Prohibition of Discrimination only on grounds of religion, race, caste, sex, or Place of birth.
The word ‘only’ denoted that discrimination on other grounds is not prohibited.
Article 15(1) – No discrimination on 5 grounds only by the State; only for citizens.
Article 15(2) – No discrimination on 5 grounds (or) combination; by both State and Private Individuals. E.g. Access to Public places like parks, roads, wells, etc.
Four exceptions to non-discrimination are enabling provisions (positive discriminations) as derived under Equal Protection of Law (Article 14).
Article 15(3) – Enabling provisions for women and children. E.g. Reservation for women in the 73rd and 74th Constitutional amendment act; Odd Even policy of Delhi; Juvenile Justice (Care and Protection of Children) Act etc.
Article 15(4) – Permits State to make special provisions for socially and educationally backward classes, SC/ST; Added by 1st Constitutional Amendment Act, 1951.
Article 15(5) – Reservation in an educational institution (Govt; Govt aided and unaided); Added by 93rd Constitutional Amendment Act; Central Educational Institution (Reservation in Admission) Act, 2006 passed; Creamy Layer upheld by Ashok Kumar Thakur case, (2008).
Article 15(6) – Added by 103rd Constitutional Amendment Act; EWS reservation (10%).
Article 16 – Equal opportunity in Matters of Public Employment.
No citizen can be discriminated against for public employment on the grounds of only religion, race, caste, sex, descent, place of birth, or residence.
Exception:
- Parliament can provide for Sons of Soil Doctrine In certain subordinate services. E.g. Public Employment (Requirement as to Residence), Act 1957.
- A law can provide for the incumbent offices of religious or denominational institutions or governing bodies to belong to a particular religion.
Article 16 – Provides for the reservation to OBC, SC/ST;
- Mandel Commission (27%) for OBC;
- Indra Sawhney Case (1992) – No Reservation in Promotion; 50% cap; Creamy Layer to be excluded in OBC; No test of backwardness for SC/ST;
- Article 16(4) – Provides for reservation to OBC; SC/ST;
Article 16 (4A) – 77th Constitutional Amendment Act: Reservation in Promotion and Consequential Seniority.
Article 16 (4B) – 81st Constitutional Amendment Act (2000); Carry forward policy.
Article 16 (6) – 103rd Constitutional Amendment Act; EWS reservation.
Article 17 – Abolition of Untouchability
‘Untouchability’ is abolished and its practice in all forms is forbidden.
The constitution does not prescribe any punishment under this article. Therefore, The Parliament enacted the Untouchability (Offenses) Act, of 1955, which has subsequently been amended and renamed as Protection of Civil Rights Act, of 1955.
The term ‘untouchability’ has not been defined in either the constitution or the act. According to the Supreme Court – ‘untouchability’ should not be understood in its literal or grammatical sense. It has to be understood as the ‘practice as it had developed historically’.
Rights of Article 17 are available against private individuals. It is the constitutional obligation of the State to ensure that the rights are not violated.
Article 18 – Abolition of Titles
Except for academic or military titles, the state shall not confer any titles.
The article also prevents Indian nationals from accepting titles from other countries.
The titles Rai Bahadur, Khan Bahadur, and other titles bestowed by the British Empire are abolished in this article.
This category does not include awards such as the Padma Shri, Padma Bhushan, Padma Vibhushan, and Bharat Ratna, or military honors such as the Ashok Chakra and Param Vir Chakra.
Right to freedom (Articles 19 – 22)
Article 19 – Right to Freedom of Expression
Article 19(1)(a) – Right to Freedom of Speech and Expression
Available to citizens only against state and not private individuals; qualified in nature;
Reasonable restriction 19(2) – Sovereignty and integrity of India; Security of the state, friendly relations with foreign state; public order; decency or morality, contempt of court, defamation; incitement to an offense.
Subject to the test of reasonability by courts.
Freedom of Press implied under Article 19(1)(a) [Romesh Thappar case (1950)]
- Defamation [Section 499 IPC] – Subramanya Swami vs UoI:
a. Supreme Court upheld the validity of criminal defamation.
b. Right to reputation under Article 21 to be balanced with the right provided under Article 19(1)(a)
c. Ensuring constitutional fraternity - Sedition [Section 124A IPC] – Supreme Court upheld in Kedarnath (1962) and Balwant Singh (1995) case.
a. lear and immediate incitement of violence; more discussion and advocacy not to be considered seditious. - Censorship (Indian Cinematographic Act, 1952)
- Hate Speech – Section 153A (Affecting Class and communal Harmony)
Article 19(1)(b) – Right to assemble peacefully without arms
- Can be exercised only on public land
- Subject to reasonable restrictions based on India’s sovereignty and integrity, as well as public order, including the preservation of traffic in a given area (Article 19(3)),
- Section 144 (CrPC): A magistrate can restrain an assembly.
- Section 141 (IPC): If imposed, makes assembly of 5 or more persons unlawful.
Article 19(1)(c) – Right to form associations
- All citizens have the right to form associations or unions or cooperative societies (Included through the 97th constitutional amendment, 2011).
- Subject to reasonable restrictions on grounds of sovereignty and integrity of India, public order, and morality.
- However, the right to obtain recognition of the association is not an FR.
- According to SC, the Right to strike is a statutory right (controlled by industrial laws) and not an FR.
Article 19(1)(d) – Right to move freely throughout the territory of India
- Subject to reasonable restrictions on two grounds, namely – the interests of the general public and the protection of interests of any scheduled tribe.
- Right to travel within India – through Article 19; Right to travel abroad – through Article 21.
Article 19(1)(e) – Right to reside & settle in any part of territory of India
- Subject to reasonable restrictions on two grounds, namely – the interests of the general public and the protection of interests of any scheduled tribe.
- SC has held that certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders.
Article 19(1)(f) – Right to practice any profession or to carry on any occupation, trade, or business
- The state can prescribe technical qualifications; Reasonable restriction (Article 19(b)) on grounds of Public Safety, Health, Morality, and General welfare of the people.
- The right does not include the right to carry out a profession that is immoral. E.g. human trafficking.
Article 20 – Protection in respect of conviction for the offense.
- No ex-post-facto law – No person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, not 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 offense.
- No double jeopardy – No person shall be prosecuted and punished for the same offense more than once.
- No self-incrimination – No person accused of any offense shall be compelled to be a witness against himself.
Article 21 – 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.
“Procedure established by Law” –
Narrow interpretation in AK Gopalan case (1950) – life and liberty can be defined and limited by the procedure established by law.
Broad interpretation in Menaka Gandhi case (1978) – the law should be reasonable, fair, and just. Thus interpreted ‘Due process of Law’ as inherent in Article 21. Due process of law is an American concept by origin.
Rights Implied under article 21
- Right to Privacy (Justice Puttaswamy case 2017)
- Passive Euthanasia & Right to Execute a living will (NGO Common Cause case 2018).
- Right to marry a person of one’s choice (Hadiya case 2018).
- Right to Reputation (Subramaniya Swamy Case 2016).
- Right to Primary Education (Unnikrishnan Case 1993).
Further;
the Right to Livelihood;
the Right to Rehabilitation of Bonded Labor,
the Right to Speedy Justice;
the Right to clean the surrounding;
the Right to travel Abroad;
the Right to sleep; etc.
have been held to the right implied under article 21 of the constitution by the Supreme Court.
Article 21A – Right to Education
Makes free and compulsory education a Fundamental Right for all children in the age group of 6-14 years.
Added through 86th Constitutional Amendment Act, 2002.
Before becoming an FR, the provision of providing free and compulsory education was a Directive principle under Article 45.
Article 22 – Protection against Arrest and Detention in Certain Cases.
Article 22(1) and Article 22(2) – Punitive Detention: to punish a person after trial and conviction.
Right to be Informed, Right to consult and be defended by a legal practitioner.
Right to be produced before a magistrate within 24 hours and Right to be released unless the magistrate authorizes.
Article 22(4) to Article 22(7) – Preventives Detention: Detention done in Anticipation; Precautionary in nature.
Detention cannot exceed 3 months unless approved by an advisory board.
Right to be informed about grounds of detention.
Legislation on Preventive detention –
For reasons connected with defense, foreign affairs, and security of India – Parliament has exclusive authority to make laws.
For reasons connected to the security of a state, maintenance of public order, and maintenance of supplies and services essential to the community – concurrent powers to both Parliament and state legislatures.
Right Against Exploitation (Articles 23 – 24)
These are crucial Fundamental Rights that ensure that no citizen is subjected to any form of forced labor.
Article 23
Prohibition of traffic in human beings and forced labor.
It prohibits other similar forms of forced labor like bonded labor.
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 (Articles 25–28)
Article 25
Freedom of conscience and free profession, practice, and propagation of religion
Article 25 guarantees the freedom of conscience, and the freedom to profess, practice, and propagate religion to all citizens.
Article 26
Freedom to manage religious affairs
Article protects collective freedom of religion.
Article 27
Freedom as to payment of taxes for the promotion of any particular religion.
The state should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.
Article 28
Freedom from attending religious instructions.
No religious instruction shall be provided in any educational institution wholly maintained by out-of-state funds.
Cultural and Educational Rights (Articles 29 – 30)
Article 29
Protection of interests of minorities
Any section of the citizens residing in any part of India having a distinct language, script, or culture of its own shall have the right to conserve the same.
Article 30
Rights of minorities to establish and administer educational institutions.
Right to Constitutional Remedies (Article 32)
Provides the institutional framework for the enforcement of Fundamental Rights. This makes the Right to get fundamental rights protected, itself a Fundamental Right. Dr. B.R. Ambedkar called it “the heart and soul of the Constitution”. Empowers the Supreme Court to issue writs for enforcement of Fundamental Rights. The concept of writs is taken from the UK.
The five types of writs are:
- Habeas Corpus,
- Mandamus,
- Prohibition,
- Certiorari,
- Quo-Warranto,
This makes the Supreme Court the defender and guarantor of the fundamental rights of the citizens.
Jurisdiction of SC – original but not exclusive (Shared by High Courts under Article 226).
Article 32 cannot simply be invoked to check the constitutionality of legislation or order unless it infringes any fundamental rights.
Article 33
Armed force and fundamental rights
It empowers the parliament to restrict or abrogate fundamental rights of the members of the police force, paramilitary, armed forces, intelligence agencies, and analogous forces.
Article 34
Martial law and fundamental rights
Restriction on fundamental rights while martial law is in force.
Article 35
The article lays down that the powers to make laws, to give effect to certain
specified fundamental rights shall vest only in parliament, not in state legislatures.
Important Features of Fundamental Rights
Fundamental Rights are Universal:
The Fundamental Rights enshrined in our Constitution are bestowed upon each and every citizen of the Republic without any consideration of religion, caste, creed, color, or sex.
Fundamental Rights are Justiciable
If the State, an individual, or a group of people infringes on our rights, we have the right to go to the courts and have them redressed. Even a law passed by the country’s legislature might be overturned by the courts if it infringes on any of our Constitution’s Fundamental Rights.
Fundamental Rights are amendable
Fundamental rights are not inviolable and unchangeable. Any aspect of the Constitution, including Fundamental Rights, can be amended by Parliament.
Special Rights for minorities
Minorities of all kinds are guaranteed some specific rights under the Fundamental Rights. This is in addition to the Constitution’s guarantee of its secular nature.
They have been accorded cultural and educational rights.
It outlaws untouchability and makes it a criminal offense.
It has also granted special protections to women, children, and the weaker sections of society.
An integral part of the Constitution:
Fundamental Rights are an essential component of the Constitution and so cannot be taken away by regular legislation.
If a bill approved by any legislature in the country violates the Constitution’s guarantees of rights, it will be deemed null and void.
Detailed and comprehensive:
Part III of the Constitution lays out a comprehensive list of rights.
Each article’s scope and limitations have been described in a comprehensive manner
Limitations of Fundamental Rights
The Fundamental rights enshrined by the Constitution are subjected to reasonable restrictions as well as Limitations as follows:
Lack of Social and Economic Rights:
Political rights make up the majority of the list of fundamental rights. There are no provisions establishing important social and economic rights like the right to social security, the right to labor, the right to employment, and so on. Other countries’ constitutions, such as China’s, give for such rights.
Lack of Clarity:
Many phrases and words used under the definitions of various fundamental rights are found to be not clear or vague as their explanation is not given anywhere in the Constitution of India. Words such as, ‘Public order’, ‘minorities’, reasonable restrictions’, etc. belong to this category.
Not Permanent:
Fundamental rights can be curtailed or abolished by Parliament. The abolition of the fundamental right to property is an example of this. They have been criticized for becoming a play tool in the hands of the politicians having majority support in the Parliament. Hence they lack permanency.
Provision during Emergencies:
Fundamental rights are criticized on the basis of their temporary suspension during the operation of a National Emergency (except for the fundamental rights defined under Articles 20 and 21 all fundamental rights are suspended during an emergency.
Preventive Detention:
Provisions for the concept of Preventive Detention are criticized by many and the reason for this is said to be that it takes away the spirit and substance of fundamental rights as it confers arbitrary powers on the State.
Expensive Remedy:
The judicial processes are far too expensive, preventing the average man from having his rights enforced in the courts because not everyone has the financial means or even the time to go through them.
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