Fundamental Rights of Indian Constitution

 Introduction 

• Fundamental rights are the basic human rights enshrined in the Constitution of India which are guaranteed to all citizens. They are applied without discrimination on the basis of race, religion, gender, etc.
• Articles 12-35 (Part III) of the Indian Constitution deal with Fundamental Rights.
• Fundamental Rights are largely inspired by the Bill of Rights in the American Constitution.
• Part III of the Constitution is rightly described as the Magna Carta of India.
• The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State.
  
  
  

Types of Fundamental right

• Originally, the Constitution provided for seven Fundamental Rights viz,

1.     Right to equality (Articles 14–18)

2.     Right to freedom (Articles 19–22)

3.     Right against exploitation (Articles 23–24)

4.     Right to freedom of religion (Articles 25–28)

5.     Cultural and educational rights (Articles 29–30)

6.     Right to property (Article 31)

7.     Right to constitutional remedies (Article 32)

• However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

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

• Article 14 (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.

Ø  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.

• Article 15 (Prohibition of Discrimination): Article 15 provides that no citizen shall be discriminated on grounds only of religion, race, caste, sex or place of birth.

Ø  Exception: Certain provisions can be made for the women, children, citizens from any socially or educationally backward class for their upliftment (such as reservation and access to free education).

• Article 16 (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.

Ø  Exceptions: There are provisions for reservation in appointments or posts for any backward class that is not adequately represented in the state services.

• Article 17 (Abolition of Untouchability): Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.
• Article 18 (Abolition of Titles): Article 18 of the constitution of India abolishes titles and makes four provisions in that regard:

Ø  It prohibits the state from conferring any title on any citizen or a foreigner (except a military or academic distinction).

Ø  It prohibits a citizen of India from accepting any title from any foreign state.

Ø  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.

Ø  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 (Article 19, 20, 21 and 22)

• Article 19 (Protection of 6 Rights): Article 19 guarantees to all citizens the six rights of freedom including:

1.     Right to freedom of speech and expression.

2.     Right to assemble peaceably and without arms.

3.     Right to form associations or unions or co-operative societies.

4.     Right to move freely throughout the territory of India.

5.     Right to reside and settle in any part of the territory of India.

6.     Right to practice any profession or to carry on any occupation, trade or business.

• Article 20 (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:

Ø  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.

Ø  No person shall be prosecuted and punished for the same offence more than once.

Ø  No person accused of any offence shall be compelled to be a witness against himself.

• Article 21 (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.
• Article 21 A (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.

Ø  This provision was added by the 86th Constitutional Amendment Act of 2002.

• Article 22 (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).

Ø  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.

Ø  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 detent.

§  The detenu should be afforded an opportunity to make a representation against the detention order.

Right Against Exploitation (Article 23 and 24)

• Article 23 (Right against Exploitation): The Article 23 of the Indian Constitution prohibits human trafficking and begar (forced labour without payment) to protect the millions of underprivileged and deprived people of the country.
• Article 24 (Prohibition of Child Labour0: Article 24 of the Indian Constitution forbids employment of children below the age of 14 years in dangerous jobs like factories and mines.  It also prohibited the employment of adolescents (14-18 years of age) in hazardous occupations or processes.

Right to Freedom of Religion (Article 25-28)

• Article 25 (Freedom of Conscience, Profession, Practice and Propagation): Article 25 of the Constitution of India provides the freedom of conscience, to profess, to practice and to propagate any religion. These rights are available to citizens as well as non-citizens,

Ø  Limitations: The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health.

Ø  The government can interfere in religious matters for rooting out certain social evils. For example: banning practices like sati, bigamy or human sacrifice. Such restrictions cannot be opposed in the name of interference in the right to freedom of religion.

• Article 26 (Freedom to Manage Religious Affairs): The Article 26 of the Indian Constitution provides every religious denomination (or any section of it) the right to establish and maintain institutions for religious and charitable purposes.

• Article 27 (Freedom from Taxation for Promotion of a Religion): The Indian Constitution under Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.

Ø  It says that no public money, collected through taxes, shall be spent for the promotion or maintenance of any particular religion.

Ø  Favouring, patronising or supporting any religion over the other is prohibited.

Ø  It prohibits only levy of a tax and not a fee.

• Article 28 (Freedom from Attending Religious Instruction): Article 28 states that no religious instruction shall be provided in any educational institution wholly maintained out of State (the territory of India) funds.

Cultural and Educational Rights (Article 29 and 30)

• Article 29 (Protection of Interests of Minorities): Article 29 provides that every section of citizens residing in any part of the country have the right to protect and conserve its own distinct language, script or culture (it provides the right to a group/section/community of people).

Ø  Further, it says that no citizen shall be denied admission into any educational institution on grounds only of religion, race, caste, or language (it provides the rights to an individual citizen).

• Article 30 (Right of Minorities to Establish and Administer Educational Institutions): Article 30 grants all the minorities the following rights:

Ø  The right to establish and administer educational institutions of their choice.

Ø  The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act, 1978 to protect the right of minorities in this regard.

Ø  The State shall not discriminate against any educational institution managed by a minority, the protection under Article 30 is confined only to minorities (religious, cultural or linguistic) and does not extend to any other section of citizens (as under Article 29).

Right to property (Article 31)

• Originally, the right to property was one of the seven fundamental rights and provided that no person shall be deprived of his property except by authority of law.
• However, being one the most controversial rights, the 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right and made it a legal right (constitutional right) under Article 300A in Part XII of the Constitution.

Right to Constitutional Remedies (Article 32)

• Article 32 is considered the most important article of the Constitution as it provides that the right to get Fundamental Rights protected is itself a fundamental right.
• It confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen.
• The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution.
• It contains the following four provisions:

Ø  The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights.

Ø  The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights.

Ø  Parliament can empower any other court to issue directions, orders and writs of all kinds.

Ø  The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution.

• Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights etc.

Amendability of Fundamental Rights

• Any changes to the fundamental rights require a constitutional amendment that should be passed by both the Houses of Parliament. The amendment bill should be passed by a special majority of Parliament.
• As per the Constitution, Article 13(2) states that no laws can be made that take away fundamental rights.
• The question is whether a constitutional amendment act can be termed law or not.
• In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can amend any part of the Constitution including fundamental rights.
• But in 1967, the SC reversed its stance taken earlier when in the verdict of the Golaknath case, it said that the fundamental rights cannot be amended.
• In 1973, a landmark judgement ensued in the Kesavananda Bharati case, where the SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.”
• This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
• In 1981, the Supreme Court reiterated the Basic Structure doctrine.
• It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.

Features of Fundamental Rights

• Fundamental rights are different from ordinary legal rights in the manner in which they are enforced. If a legal right is violated, the aggrieved person cannot directly approach the SC bypassing the lower courts. He or she should first approach the lower courts.
• Some of the fundamental rights are available to all citizens while the rest are for all persons (citizens and foreigners).
• Fundamental rights are not absolute rights. They have reasonable restrictions, which means they are subject to the conditions of state security, public morality and decency and friendly relations with foreign countries.
• They are justiciable, implying they are enforceable by courts. People can approach the SC directly in case of violation of fundamental rights.
• Fundamental rights can be amended by the Parliament by a constitutional amendment but only if the amendment does not alter the basic structure of the Constitution.
• Fundamental rights can be suspended during a national emergency. But, the rights guaranteed under Articles 20 and 21 cannot be suspended.
• The application of fundamental rights can be restricted in an area which has been placed under martial law or military rule.

The criticisms of Fundamental Rights

• Due to excessive limitations critics remarked that the Constitution grants Fundamental Rights with one hand and takes them away with the other.
• The list is not comprehensive as it mainly consists of political rights. It makes no provision for important social and economic rights like right to social security, right to work, right to employment, right to rest etc.
• The various phrases and words used in the chapter like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not clearly defined.
• The language used to describe them is very complicated and beyond the comprehension of the common man.
• Suspension During National Emergency (except Articles 20 and 21) cuts at the roots of democratic system in India by placing the rights of the innocent in continuous jeopardy.
• The judiciary has been made responsible for defending and protecting these rights against the interference of the legislatures and executives. However, the judicial process is too expensive and hinders the common man from getting his rights enforced through the courts.

Significance of fundamental rights    

• Fundamental right constitutes the bedrock of the democratic system in the country.
• Fundamental right provides necessary conditions for the material and moral protection of man.
• Fundamental right serves as a formidable bulwark of individual liberty.
• They facilitate the establishment of rule of law in the country.
• They protect the interests of minorities and weaker sections of society.
• Fundamental right strengthens the secular fabric of the Indian State.
• They check the absoluteness of the authority of the government.
• They lay down the foundation stone of social equality and social justice.
• Fundamental right ensures the dignity and respect of individuals.
• Fundamental right facilitates the participation of people in the political and administrative process.