Fundamental Rights

In the dynamic landscape of Indian governance, the concept of Fundamental Rights holds a paramount significance. These rights, enshrined in Part III of the Constitution of India, form the bedrock of democratic principles and are essential for the protection and empowerment of citizens. For aspirants preparing for the UPSC examination, a comprehensive understanding of Fundamental Rights is not just crucial for clearing the exam, but also for grasping the essence of Indian polity and society.

Fundamental rights, as outlined in the Constitution of India, are the basic human entitlements extended to all citizens without any bias towards factors like race, religion, or gender. Importantly, they hold the distinction of being enforceable through legal channels, subject to specific conditions.

The term “Fundamental Rights” is aptly bestowed upon these entitlements due to two primary reasons:

They are explicitly laid down in the Constitution, thereby ensuring their guarantee.
They are subject to judicial enforcement, meaning individuals have the recourse to approach a court of law in case of infringement.

Part III of the Constitution, encompassing Articles 12-35, serves as the repository of Fundamental Rights in India.
Revered as the “Magna Carta of India,” this segment of the Constitution draws parallels to the significance of the Magna Carta, a historic document issued by King John of England in 1215, which marked the inception of written guarantees concerning citizens Fundamental Rights.

The Constitution of India guarantees six Fundamental Rights to its citizens:

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)

Initially, the Right to property (Article 31) was also included as a Fundamental Right. However, it was removed from this category by the 44th Amendment Act, 1978. Instead, it was redefined as a legal right under Article 300-A in Part XII of the Constitution.

Salient features of Fundamental Rights

Certain rights are exclusive to citizens, while others extend to all individuals, including foreigners and legal entities such as corporations.
Rights available only to citizens.

Fundamental Rights are not absolute but subject to reasonable restrictions imposed by the state, ensuring a balance between individual freedoms and societal interests.
They serve as a safeguard against arbitrary state actions, with some rights also applicable against actions of private individuals.
While some rights impose limitations on the state’s authority (negative), others confer privileges upon individuals (positive).
Enforceable through the courts, citizens can seek legal remedies for violations, ensuring access to justice and governmental accountability.
The Supreme Court safeguards these rights, allowing aggrieved parties to directly approach it without needing to appeal to high courts.
Fundamental Rights aren’t immutable and can be amended by Parliament through a constitutional process, provided such changes do not undermine the Constitution’s basic structure.
During a national emergency, certain rights may be suspended by the President, except for those protected under Articles 20 and 21.
Parliament holds the authority to limit or suspend these rights for members of armed forces, paramilitary forces, police, intelligence agencies, and similar services (Article 33).
In areas under martial law, the application of Fundamental Rights can be restricted (Article 34).
Most rights are directly enforceable, while others require specific laws for enforcement, with only Parliament empowered to enact such laws to ensure consistency across the nation (Article 35).

Article 12: Definition of State

Article 12 of the Indian Constitution defines the term ‘State’ as it applies to Part III. This includes:

The Government and Parliament of India, comprising the executive and legislative branches of the Union government.
The Government and Legislature of States, encompassing the executive and legislative branches of state governments.
All local authorities, such as municipalities, panchayats, district boards, and improvement trusts.
All other authorities, whether statutory or non-statutory, such as LIC, ONGC, SAIL, etc.

Actions taken by these entities can be legally challenged in court if they violate the fundamental rights guaranteed by the Indian Constitution.

Article 13: Laws conflicting Fundamental Right

Article 13 of the Indian Constitution stipulates that any laws conflicting with or undermining fundamental rights are rendered void. This provision inherently establishes the doctrine of judicial review. The authority for judicial review is vested in the Supreme Court under Article 32 and in the High Courts under Article 226.

The term ‘law’ in Article 13 encompasses various types of legislation and legal instruments, including:

Permanent laws enacted by the Parliament or State Legislatures.
Temporary laws such as ordinances issued by the President or State Governors.
Statutory instruments, including delegated legislation, ordinances, orders, bye-laws, rules, regulations, or notifications.
Non-legislative sources of law, such as customs or usage with legal force.

While Article 13 exempts constitutional amendments from being challenged on the basis of contravening fundamental rights, the Supreme Court, in the Kesavananda Bharati case of 1973, ruled that constitutional amendments can indeed be challenged if they violate fundamental rights.

Doctrine of Severability

The Doctrine of Severability, also referred to as the Doctrine of Separability, safeguards the fundamental rights outlined in the Constitution. As outlined in Article 13, this doctrine dictates that any laws in force in India before the Constitution’s enactment, conflicting with fundamental rights, shall be void only to the extent of that inconsistency. In essence, this doctrine ensures that only the specific provisions of a statute that contradict fundamental rights are deemed void, rather than nullifying the entire statute.

Doctrine of Eclipse

The doctrine stipulates that any law contravening fundamental rights is not inherently null or void from the outset but is instead rendered unenforceable. This means it remains legally existent but inactive. Under this doctrine, when a fundamental right, violated by a law, is struck down, the law becomes operational again or is revived. It’s important to highlight that the doctrine of eclipse solely applies to pre-constitutional laws, meaning laws enacted before the Constitution came into effect, and not to post-constitutional laws. Consequently, any post-constitutional law breaching a fundamental right is considered void from the beginning.

Right to Equality (Article 14-18)

Article 14: Equality Before Law

Article 14 of the Indian Constitution guarantees equality before the law and equal protection of the laws to all individuals within the territory of India. This right is applicable to all persons, regardless of citizenship status, including statutory corporations, companies, registered societies, and other legal entities.

However, there are exceptions to this principle:

According to Article 361, the President of India or Governors of states are not subject to legal scrutiny for the exercise of their powers or duties, and no civil or criminal proceedings can be initiated or continued against them during their tenure.
Article 361-A prohibits civil or court proceedings against individuals for publishing substantially true reports of the proceedings of either House of Parliament or State Legislature.
Members of Parliament (Article 105) and State Legislatures (Article 194) are immune from court proceedings regarding anything said or any vote given by them in Parliament or any committee.
Foreign sovereigns, ambassadors, and diplomats enjoy immunity from both criminal and civil proceedings.

Article 15: Prohibition of Discrimination

Article 15 of the Indian Constitution prohibits discrimination against citizens solely based on religion, race, caste, sex, or place of birth.

Exceptions to this provision allow for specific measures to be enacted for the upliftment of certain groups, including women, children, and citizens from socially or educationally backward classes. These measures may include reservations and access to free education.

Article 16: Equality of Opportunity in Public Employment:

Article 16 of the Indian Constitution ensures equality of opportunity for all citizens in matters of employment or appointment to public office.

Exceptions to this provision include provisions for reservation in appointments or posts for backward classes that are not adequately represented in state services. Additionally, individuals holding positions in religious or denominational institutions may belong to the particular religion or denomination.

Article 17: Abolition of Untouchability

Article 17 of the Indian Constitution abolishes the practice of ‘untouchability’ in any form and prohibits its enforcement. Engaging in any act of untouchability is considered an offense punishable by law.

A person convicted of committing untouchability is disqualified from contesting elections to Parliament or state legislatures. Acts considered as offenses of untouchability include:

Directly or indirectly preaching untouchability.
Preventing individuals from entering shops, hotels, public places of worship, or places of public entertainment.
Refusing admission to hospitals, educational institutions, or hostels established for public benefit.
Justifying untouchability based on traditional, religious, philosophical, or other grounds.
Insulting individuals belonging to scheduled castes on the basis of untouchability.

Article 18: Abolition of Titles

Article 18 of the Indian Constitution abolishes titles and establishes four provisions:

It prohibits the state from granting any title to any citizen or foreigner, with exceptions for military or academic distinctions.
It forbids citizens of India from accepting titles from foreign states.
Foreigners holding office of profit or trust under the Indian state cannot accept titles from foreign states without the consent of the President of India.
No citizen or foreigner holding office of profit or trust within the Indian territory can accept any present, emolument, or office from or under any foreign state without the President’s consent.

Right To Freedom (Article 19-22)

Article 19: Protection of 6 Rights

Article 19 of the Indian Constitution guarantees six freedoms to all citizens:

Freedom of speech and expression, allowing individuals to freely express their views, opinions, beliefs, and convictions through various mediums such as speech, writing, printing, or any other form of communication.
Right to assemble peaceably and without arms, permitting individuals to hold public meetings, demonstrations, and processions on public land, provided they are peaceful and non-violent.
Right to form associations, unions, or cooperative societies, allowing individuals to establish political parties, companies, partnership firms, societies, clubs, organizations, trade unions, or any other group of individuals.
Right to move freely throughout the territory of India, encompassing both internal movement within the country (Article 19) and external movement (Article 21), which includes the right to leave and return to the country.
Right to reside and settle in any part of the territory of India, subject to certain restrictions in tribal areas to protect the cultural and traditional practices of scheduled tribes.
Right to practice any profession or carry on any occupation, trade, or business, with the exception of professions deemed immoral or dangerous, such as trafficking in women or children or dealing with harmful drugs or explosives.

Article 20: Protection in Respect of Conviction for Offences

Article 20 of the Indian Constitution provides protection against arbitrary and excessive punishment to any accused individual, whether they are a citizen, foreigner, or legal entity such as a company or corporation. Protection against arbitrary and excessive punishment for offenses is available to citizens, foreigners, and legal entities.

No Ex-Post Facto Legislation – Individuals cannot be (a) convicted of any offense except for violating a law in effect at the time of the act, nor (b) subjected to a penalty greater than that prescribed by the law at the time of the act. This protection applies solely to criminal laws, not civil laws.
No double jeopardy – Individuals cannot be punished for the same offense twice. This protection applies specifically to court proceedings and tribunals, not proceedings before departmental authorities.
No self-incrimination – Individuals cannot be compelled to witness against themselves. This protection extends exclusively to criminal proceedings, not civil proceedings.

Article 21: Protection of Life and Personal Liberty

Article 21 of the Indian Constitution states that no individual shall be deprived of their life or personal liberty except in accordance with the procedure established by law.

Interpretations of “Procedure established by Law”:

Initially, the AK Gopalan case (1950) interpreted this provision narrowly, allowing for life and liberty to be defined and limited solely by the procedure established by law.
However, the Menaka Gandhi case (1978) broadened this interpretation, asserting that the law should be reasonable, fair, and just. This case interpreted “Due process of Law” as inherent in Article 21, borrowing from the American concept.

Implied Rights under Article 21:

Over time, the Supreme Court has recognized various implied rights under Article 21, including:
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 (Subramanian Swamy Case 2016)
Right to Primary Education (Unnikrishnan Case 1993)
Additionally, the Supreme Court has acknowledged several other rights as implied under Article 21, such as Right to Livelihood, Right to Rehabilitation of Bonded Labor, Right to Speedy Justice, Right to Clean Surroundings, Right to Travel Abroad, Right to Sleep, etc.

The Supreme Court of India has aptly described Article 21 as the “heart of fundamental rights,” given its significance in protecting life and personal liberty.

Article 21-A: Right to Education

Article 21(A) of the Indian Constitution mandates that the State must ensure free and compulsory education for all children aged six to fourteen years. However, this provision specifically pertains to elementary education and does not extend to higher or professional education.

The inclusion of this provision was made through the 86th Constitutional Amendment Act of 2002. Prior to this amendment, the Constitution addressed the issue of free and compulsory education for children under Article 45 in Part IV.

Article 22: Protection Against Arrest and Detention

Article 22 of the Indian Constitution provides safeguards for individuals who are arrested or detained, distinguishing between punitive detention (after trial and conviction) and preventive detention (without trial and conviction).

The first part of Article 22 addresses ordinary law and includes the following provisions:

The right to be informed of the grounds of arrest.
The right to consult and be defended by a legal practitioner.
The right to be brought before a magistrate within 24 hours, excluding travel time.
The right to be released after 24 hours unless further detention is authorized by the magistrate.

The second part of Article 22 pertains to preventive detention law. This protection is extended to both citizens and aliens and includes the following:

Preventive detention cannot exceed three months unless an advisory board (comprising judges of high court) finds sufficient cause for extended detention.
The grounds of detention must be communicated to the detainee.
The detainee must be given an opportunity to make a representation against the detention order.

Right Against Exploitation (Article 23-24)

Article 23: Prohibition of Traffic in Human being & Forced labour

Article 23(1) of the Indian Constitution prohibits traffic in human beings, begar (forced labor), and other forms of forced labor. This provision is enforced through laws such as the Immoral Traffic Prevention Act, 1986, and the Bonded Labour Abolition Act, 1976.

Article 23(2) allows the state to impose compulsory service for public purposes. However, in imposing such service, the state is prohibited from discriminating solely on the grounds of religion, race, caste, or class.

Article 24: Prohibits Employment of children in Factories etc

The Indian Constitution prohibits the employment of children below the age of 14 in hazardous occupations. Specifically, no child under 14 years old can be employed in factories, mines, or any other hazardous employment.

In the case of M.C. Mehta v State of Tamil Nadu, the Supreme Court emphasized the responsibility of state authorities to safeguard the economic, social, and humanitarian rights of children.

Right to Freedom of Religion (Article 25-28)

Article 25: Freedom of Conscience, Profession, Practice and Propagation of Religion

This article covers both religious beliefs and rituals, allowing individuals the freedom to profess, practice, and propagate their religion. However, reasonable restrictions may be imposed in the interest of public order, morality, health, and other provisions relating to fundamental rights.

All individuals are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion, subject to the aforementioned considerations. The wearing and carrying of kirpans (a ceremonial dagger) is considered part of the profession of the Sikh religion.
This article does not hinder the operation of existing laws or the state’s ability to enact laws:
(a) Regulating or restricting any secular activity associated with religious practice, such as economic, financial, or political activities.
(b) Providing for social welfare and reform, or opening Hindu religious institutions of public nature to all classes and sections of Hindus.
In clause (2)(b), the term “Hindus” includes individuals professing the Sikh, Jaina, or Buddhist religion, and the term “Hindu religious institutions” is interpreted accordingly.

Article 26: Freedom to manage Religious Affairs

This provision safeguards the collective freedom of religion, including the rights to establish and maintain religious institutions, manage one’s own religious affairs, and own, acquire, and administer both movable and immovable property.
Right to establish and maintain religious institutions.
Right to manage own affairs in matter is religion
Right to own, acquire and administer movable and immovable property.
However, these rights are subject to reasonable restrictions in the interest of public order, morality, and health.

Article 27: Freedom from Payment of taxes for promotion of religion

Individuals cannot be forced to pay taxes for religious purposes. The state is prohibited from favoring any specific religion. However, the state can levy fees for secular administration or special services. No individual can be compelled to pay taxes that are specifically allocated for the promotion or maintenance of any particular religion or religious denomination.

Article 28: Freedom from attending Religious Instruction

Educational institutions are classified into four categories:

Those wholly maintained by the State where religious instruction is not allowed.
Institutions recognized by the State where religious instruction is permitted voluntarily.
Institutions receiving aid from the State where religious instruction is allowed on a voluntary basis.
Institutions administered by the State but established under a religious endowment, where there are no restrictions on religious instructions.

Religious instruction is not permitted in any educational institution that is entirely funded by the State.
However, this prohibition does not apply to educational institutions administered by the State but established under an endowment or trust requiring religious instruction.
Individuals attending educational institutions recognized by the State or receiving aid from State funds cannot be compelled to participate in any religious instruction or worship without their or their guardian’s consent, if they are minors.

Cultural and Educational Rights (Article 29-30)

Article 29: Protection of Interest of Minorities

Any group of citizens with a unique language, script, or culture has the right to safeguard their identity. This right, as interpreted by the Supreme Court, is not limited to religious or cultural minorities but applies to all sections of citizens.

No citizen can be refused admission into an educational institution funded wholly or partially by the State solely based on their religion, race, caste, or language.

Article 30: Right of Minorities to Establish and Administer Educational Institutions

All minority communities, whether based on religion or language, have the right to establish and manage educational institutions of their choice.

When the State makes laws for the compulsory acquisition of any property belonging to an educational institution run by a minority, it must ensure that the compensation provided does not infringe upon or limit the rights guaranteed under this provision.

The State cannot discriminate against any educational institution run by a minority, based on religion or language, when granting aid to educational institutions.

Right to constitutional remedies (Article 32-35)

Article 32: Enforcement of Rights

The institutional framework for the enforcement of Fundamental Rights is provided by the Constitution itself, making the right to have Fundamental Rights protected a Fundamental Right in its own regard.
B.R. Ambedkar described this framework as “the heart and soul of the Constitution.”
This framework empowers the Supreme Court to issue writs for the enforcement of Fundamental Rights, a concept borrowed from the UK legal system.

Writ of Habeas Corpus:

This writ means “to show the body of”, it serves to safeguard an individual’s liberty and prevent unlawful detention.
When issued, it orders the authorities to present the detained individual before the court to assess the legality of their detention.
It acts as a remedy against illegal confinement and can be petitioned by the detained individual, their relatives, or friends on their behalf.
This writ can be employed against both public authorities and private individuals.
However, it cannot be utilized in cases of lawful detention, proceedings related to contempt of court or legislature, or detention outside the jurisdiction of the court.

Writ of Mandamus:

“Mandamus” translates to “command.”
This writ is issued by a higher court to a lower court, tribunal, or public authority, instructing them to carry out a specific duty within their legal jurisdiction.
Its purpose is to ensure that public officials and authorities fulfill their responsibilities properly.
This writ can be employed against lower courts, tribunals, public authorities, governments, and corporations.
However, it cannot be used against private individuals or bodies, the President, Governor, Chief Justice of India, or Chief Justice of the High Court acting in a judicial capacity.
It is not applicable in cases where the duty in question is discretionary rather than mandatory, involves the performance of a non-statutory function, pertains to rights of a purely private nature, entails a violation of any law, or when other legal remedies are available.

Writ of Prohibition

“Prohibition” refers to “forbidding.”
This writ is issued by a higher court to a lower court, preventing it from proceeding with a case where it lacks jurisdiction or is acting beyond its powers.
It serves to prevent inferior courts from exceeding their authority and is specifically aimed at directing inactivity, distinguishing it from mandamus, which directs activity.
This writ can only be used against judicial or quasi-judicial authorities.
However, it cannot be employed against administrative or legislative bodies, private bodies, or individuals.

Writ of Certiorari

“Certiorari” translates to “to be certified.”
This writ is issued by a higher court to a lower court, tribunal, or authority, either annulling a case or transferring it to the higher court for review.
It is utilized to rectify errors of jurisdiction or procedural irregularities and is considered a corrective writ.
A writ of certiorari may be issued by the Supreme Court or High Court to subordinate courts or tribunals under the following circumstances:

When a subordinate court operates without jurisdiction or assumes jurisdiction where it lacks authority.
When a subordinate court exceeds its jurisdiction by overstepping its limits.
When a subordinate court blatantly disregards the law or procedural rules.
When a subordinate court violates principles of natural justice in the absence of specified procedures.
However, this writ cannot be employed against legislative bodies, private entities, or individuals.

Writ of Quo-warranto

“Quo Warranto” translates to “by what authority.”
This writ is utilized to question the legal authority or entitlement of an individual to hold a public office or position.
Its purpose is to prevent unauthorized or unqualified individuals from occupying public office.
The writ can only be issued under specific conditions:

The public office is wrongfully assumed by a private person.
The office was established by the constitution or law, and the individual holding the office does not meet the qualifications outlined in the constitution or law.
The tenure of the public office must be of a permanent nature.
The duties associated with the office must be of a public nature.

However, this writ cannot be employed against ministerial offices, private offices, or individuals.

Article 32 establishes the Supreme Court as the guardian and protector of citizens’ fundamental rights. The jurisdiction of the Supreme Court is original but not exclusive, as it is shared with the High Courts under Article 226. In the Chandra Kumar case (1997), the Supreme Court affirmed that the writ jurisdiction of both the High Court and the Supreme Court is an integral part of the Constitution’s basic structure. Article 32 cannot be invoked solely to assess the constitutionality of legislation or orders unless they violate fundamental rights. During a national emergency, Fundamental Rights can be suspended except for Article 20 and 21. Article 19 can only be suspended in cases of “war or external aggression” (external emergency) and not during instances of “armed rebellion” (internal emergency).

Article 33

The Parliament is empowered to limit or abolish fundamental rights for members of the security services. This authority is exclusively vested in Parliament and not in state legislatures. It permits Court Martials to be exempted from the writ jurisdiction of both the Supreme Court and High Courts.

Article 34

The Constitution allows for limitations on fundamental rights during the enforcement of Martial Law in any region. However, the constitution does not define the term “Martial Law.” The Supreme Court has clarified that the declaration of martial law does not automatically lead to the suspension of the writ of habeas corpus.

Article 35

The authority to enact laws to enforce specific fundamental rights is entrusted to Parliament rather than state legislatures. Parliament has the jurisdiction to legislate on matters concerning Article 16(3), Article 32(3), Article 33, and Article 34, rather than state legislatures.

Other Constitutional Right

The Right to Property, initially guaranteed through Article 19(1)(f) and Article 31, was revoked by the 44th Amendment Act of 1978, eliminating them from Part III. Instead, Article 300A was introduced in Part XII under the title ‘Right to Property,’ transforming it from a fundamental right to a constitutional right.

Regarding the Right to Vote, Article 326 mandates that elections to the Lok Sabha and Legislative Assemblies are conducted through adult franchise.

Article 265 stipulates that no tax can be imposed or collected except by the authority of the law.

Article 301 ensures that trade and commerce throughout the territory of India are unrestricted.

Significance of Fundamental Rights

They constitute the foundation of the democratic system and encourage citizen involvement in the political and administrative processes.
Fundamental rights act as safeguards for individual freedom and uphold the principles of the rule of law by preventing state authoritarianism.
They establish the groundwork for social justice and uphold the dignity of every individual.
By safeguarding the interests of minorities and vulnerable groups, fundamental rights contribute to the promotion of social justice.
Fundamental rights contribute to reinforcing the secular nature of the nation.

Limitations of Fundamental Rights

Excessive Limitations: Fundamental rights are subject to numerous exceptions, restrictions, and qualifications, which diminish their scope and effectiveness.
Absence of Social and Economic Rights: The list of fundamental rights lacks comprehensiveness as it predominantly focuses on political rights, neglecting crucial social and economic rights such as the right to social security, employment, rest, leisure, etc.
Lack of Clarity: Certain terms within fundamental rights, such as ‘public order’, ‘minorities’, ‘reasonable restrictions’, etc., are expressed vaguely and ambiguously without clear definitions, leading to uncertainty.
Lack of Permanency: Fundamental rights are not absolute and can be curtailed or abolished by Parliament, as seen with the abolition of the fundamental right to property in 1978.
Suspension during Emergency: The suspension of fundamental rights during a National Emergency, except for Articles 20 and 21, undermines democracy and poses a threat to the rights of innocent individuals.
Expensive Remedy: While the judiciary is tasked with safeguarding these rights from legislative and executive encroachments, the costly nature of the judicial process hinders ordinary citizens from effectively enforcing their rights through the courts.
Preventive Detention: The provision of preventive detention (Article 22) grants excessive discretion to the State, undermining individual liberty and compromising the essence of fundamental rights.
Inconsistent Philosophy: The fundamental rights chapter lacks a coherent philosophical foundation, making interpretation challenging for the judiciary, as noted by Sir Ivor Jennings.

In summary, Fundamental Rights embody the core of Indian democracy, safeguarding citizens against arbitrary state measures and promoting their protection and empowerment. Despite critiques and constraints, these rights serve as a beacon of justice, equality, and liberty, nurturing a society that upholds the dignity and rights of every individual. As India advances on its path of progress, the preservation and meaningful application of these rights remain vital, steering the nation towards a future characterized by democracy, inclusivity, and respect for human rights.

Read about Citizenship for UPSC.

Fundamental Rights

Salient features of Fundamental Rights