The Constitution of India listed the rights to the citizens of India that would be specially protected and known as the ‘Fundamental Rights.’
- ‘Fundamental’ means the Constitution has separately listed and made special provisions for the protection of ‘Fundamental Rights.’
- Fundamental Rights are different from other rights (i.e. ordinary legal rights) available to the citizens of India.
- Ordinary legal rights are protected and enforced by ordinary law; but Fundamental Rights are protected and guaranteed by the Constitution of India.
- Ordinary Rights may be changed or amended by the legislature by ordinary law making process, but a Fundamental Right may only be changed by amending the Constitution itself.
- Judiciary has the powers and responsibility (assigned by the Constitution) to protect the Fundamental Rights; in case any government’s action violates it.
- Judiciary, if found any act of the government (either by Executive or by Legislature) equivalent to violation of the Fundamental Rights, can be declared that act illegal or restrict them to do further so.
- However, Fundamental Rights have some reasonable restrictions and hence, they are not absolute in nature.
- Furthermore, the preamble to our Constitution speaks of ensuring all its citizens equality, liberty, and justice. Fundamental Rights put this promise into effect.
- Fundamental Rights are very essential to everyone’s life. They are the basic feature of the Constitution.
- The Constitution of India provides six Fundamental Rights, which are mentioned in Articles 12 to 35 in Part-III (of Constitution).
Right to Equality
- The Rule of law is the foundation of Indian democracy that states that the laws apply in the same manner to all, irrespective of a person’s status. It means that the Prime Minister of the country or a poor farmer in a remote village is subject to the same law and equal treatment.
- Article 14 states that the government shall not deny to any person, equality before the law or the equal protection of the laws, which means −
- Laws apply in the same manner to all;
- No person is above the law;
- Every citizen is subjected to the same laws and same treatment;
- No person can legally claim any special treatment or privilege on any of the ground; and
- Law makes no distinction between a political leader, a government official, and an ordinary citizen.
- Article 15 states that no citizen can be discriminated against on the basis of his/her religion, race, caste, sex, or place of birth.
- Article 15 further enhanced the Right to Equality by providing that every citizen shall have equal access to public places like shops, restaurants, hotels, and cinema halls. Similarly, there shall be no restriction with regard to the use of wells, tanks, bathing ghats, roads, playgrounds, and places of public resorts maintained by the government.
- Article 16 states that the State cannot discriminate against anyone in the matters of employment.
- Article 17 abolishes the practice of untouchability in any form, which states that every person has access to all public places including playgrounds, hotels, shops, etc.
Right to Freedom
- Freedom means non-interference and absence of restrictions in one’s affairs by others, whether it be the individuals or the Government.
- The Constitution of India provides all citizens ‘freedom’ under Article 19 to do any of these following acts −
- Right to Freedom of speech and expression;
- Right to form assembly in a peaceful manner;
- Right to form associations and unions;
- Right to move freely throughout the country;
- Right to reside in any part of the country; and
- Right to Practice any profession, or to carry on any occupation, trade, or business.
- However, there are certain reasonable restrictions that can be imposed upon the citizens by the Government in the larger interests of the society.
- Likewise, though every citizen has the right to all these freedoms, but it is subject to reasonable restrictions such as −
- The expression of freedoms should not cause public nuisance or disorder.
- This freedom of one should not violate others’ right to freedom.
- Freedom is not unlimited right to do what one wants.
- Accordingly, the government can impose certain reasonable restrictions (on freedoms of citizens) in the larger interests of the society.
- The Honorable Supreme Court of India has explained the ‘freedom’ under Article 21 as −
- No citizen can be killed unless the court has ordered a death sentence.
- No person can be arrested or detained by the police officer unless he has proper legal justification.
- As per the guidelines settled by the Hon’ble Supreme Court of India, a police officer while arresting a person has to follow some procedures −
- The police officer is duty bound to inform the person (in case of his arrest), the reason/s of his arrest and detention and the person so arrested has the right to know the reason for his arrest.
- It shall be the duty of the police officer to produce the arrested person before the nearest magistrate within a period of 24 hours of arrest.
- The arrested person has the right to consult a lawyer of his choice for his defense.
- The Constitution of India provides all citizens ‘freedom’ under Article 19 to do any of these following acts −
Right against Exploitation
- The Constitution prohibits the following practices as evil and declares them illegal −
- Trafficking of human beings, i.e., the selling and buying of human beings, (generally, women and children are the victims of trafficking).
- Forced labor or beggar in any form is illegal and is prohibited (beggar is work or service without remuneration, which is called as bonded labor if this practice runs through life of the worker).
- Child labor is also prohibited. The children below 14 years of age, cannot be employed to work in any factory or mine or in any other hazardous work, such as railways and ports.
- The Parliament of India has enacted laws to implement constitutional right that prohibits children below 14 years of age from working in hazardous industries such as beedi making, firecrackers and matches, printing, and dyeing.
- The Constitution of India provides distinct and clear provisions to prevent exploitation of the weaker sections of the society.
- The Constitution prohibits the following practices as evil and declares them illegal −
Right to Freedom of Religion
- The Fundamental Rights under Articles 25 to 28 facilitate individuals the freedom to live by their religious beliefs and practices as they interpret these beliefs.
- Every citizen in India has liberty to profess, practice, and propagate the religion that he or she believes in.
- Every sect or a religious group is free to manage its religious affairs, but it is subject to reasonable restrictions debarring, any person, or organization to compel another person to convert into his religion by means of force, fraud, inducement, or allurement.
- This right is in the form of restrictions upon the government not to compel any person to pay any taxes for the promotion or maintenance of any particular religion or religious institution.
- In the educational institutions run or added by the government, neither any religious instruction can be imparted nor can any person be compelled to take part in any religious instruction or to attend any religious worship.
- India is a secular state, which means the State has no official religion and India does not promote/protect any one religion over the other religion.
Cultural and Educational Rights
- The democracy is based upon the wishes of the majority. In this system, the right and interest of the minorities need to be protected by developing a mechanism that cannot be changed prejudicially by the majority.
- Therefore in a democratic country, Special Protection is provided in the constitution to preserve and develop the language, culture, and religion of minorities.
- Articles 29 and 30 provide Cultural and Educational Rights, which states that all minorities, religious or linguistic groups, having a distinct language, script or culture of its own can set up their own educational institutions in order to preserve and develop their language, script, or culture.
- Any section of citizens with a distinct language or culture has the right to conserve its language, culture, and religious practices.
Right to Constitutional Remedies
- A person aggrieved by the violation of any of his/her fundamental right can approach either to the Supreme Court (under Article 32) or High Court (under Article 226) for the restoration of his/her fundamental right/s.
- The enforceability of rights is a very important aspect of all fundamental rights and hence, it is called as the “Right to Constitutional Remedies.”
- According to Dr. Ambedkar, the right to constitutional remedies is the ‘heart and soul of the Constitution.’
- If someone violates someone’s Fundamental Rights, then he/she can approach either a High Court or directly the Supreme Court to get proper remedy.
- The Supreme Court or the High Court (as the case may be) can issue orders (known as writs) and give directives to the Government for the enforcement of Fundamental Rights.
- Following are the five writs/orders issued by either the Supreme Court or High Courts −
- Habeas corpus − A writ of habeas corpus means that the court orders that the arrested person should be presented before the court. The court can also order to set free an arrested person if the manner and/or grounds of arrest are not lawful or satisfactory.
- Mandamus − This writ is issued when a court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual.
- Prohibition − This writ is issued by a higher court (High Court or Supreme Court); when a lower court has considered a case, which is going beyond its jurisdiction.
- Quo Warranto − If a court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.
- Certiorari − Under this writ, a higher court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.
- Apart from the judiciary, some other bodies and mechanisms that protect an individual’s right are −
- The National Commission on Minorities,
- The National Commission on Women,
- The National Commission on Scheduled Castes, etc.
- In 1993, the Government of India has established ‘National Human Rights Commission’ (NHRC), which consists of −
- A former chief justice of the Supreme Court of India;
- A former judge of the Supreme Court;
- A former chief justice of a High Court, and
- Two other members who have knowledge and practical experience in the matters relating to human rights.
- However, NHRC does not have the power of prosecution. It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducted.
Expansion and Scope of Fundamental Rights
- Since independence, the scope of Fundamental Rights have expanded greatly to include several other rights from time to time.
- The Fundamental Rights embedded in our constitution are the source of all rights, based on this, the Government of India enacted several laws e.g. −
- Right to information,
- Right to freedom of press, and
- Right to education.
- The Parliament of India has amended the Constitution to include ‘school education’ as a Fundamental Right for the Indian citizens. Resultantly, now it is the duty and responsibility of the governments to provide free and compulsory education to all children up to the age of 14 years.
- The Parliament has enacted a law ‘right to information act’ under the Fundamental Right to freedom of thought and expression, which provides a right to seek information from the government offices.
- The Supreme Court of India by explaining the Fundamental Rights has further expanded the scope and meaning of the Fundamental Rights, as it included ‘right to food’ in the ‘right to life’ section (i.e. Article 21).
- These are enshrined in Part III of the Indian Constitution under Articles 12 to 35.
- These were borrowed from the US constitution (Bill of Rights).
- According to Dr. B R Ambedkar it is the most criticized part of the Constitution.
- The fundamental rights are justifiable.
In the original Constitution 7 Fundamental Rights are mentioned.
o Right to Equality (14-18)
o Right to Freedom (19-22)
o Right Against Exploitation (23-24)
o Right to Freedom of Religion (25-28)
o Cultural and Educational Rights (29-30)
o Right to property (31) (Deleted through the 44th amendment)
o Right to Constitutional Remedies (32).
- In the year 1978, through 44th amendment act Right to property was deleted from the list of Fundamental Rights.
- Now it is a legal right under Article 300 A in part XII of the constitution.
- The numbers of Fundamental Rights are 6 in the present day Constitution.
- The state can impose restrictions on Fundamental rights. (They are not absolute but qualified).
- Except Fundamental rights guaranteed under Articles 20 and 21 remaining Fundamental rights can be suspended during operation of National Emergency.
- Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression and not on the grounds of armed rebellion.
Article 12 explains the state.
The state includes
- The government and the parliament of India
- The government and the state legislature
- All local authorities (municipalities, Panchayat Raj, District boards, etc)
- Other statutory and non statutory authorities (LIC, ONGC etc).
The actions of the state (all the above said) can be challenged in the courts as the violation of Fundamental Rights.
All laws that are inconsistent with or in derogation of any of the Fundamental Rights shall be void.
- This article expressively provides for the doctrine of judicial review. This power is conferred to SC (Article 32) and High Courts (Article 226) that can declare a law unconstitutional and invalid on the grounds of contravention of any of the fundamental Rights.
Note: The words ―Judicial Review‖ are not mentioned in the Constitution.
RIGHT TO EQUALITY (14-18)
- Equality before law and equal protection of laws.
- Equality before law: The absence of any special privileges in favor of any person
- Note: Equality before law is taken from the British Constitution.
- Equal Protection of Laws: The equality of treatment under equal circumstances.
- Note: This is taken from the US Constitution.
Prohibition of discrimination on the grounds only of religion, race, caste, sex, or place of birth. (Access to various places).
- Special provisions for children and Women
- Socially and economically backward sections
- Scheduled castes
- Scheduled Tribes
- Equality of opportunity in matters of Public employment.
- Article 16(4) empowers the state to make special provisions for the reservation of appointments or posts in favour of any ―backward class of citizens‖ which in the opinion of state are not adequately represented in the services of the state.
- Abolition of un-touch-ability and prohibition of its practice.
- Accordingly the Parliament passed Untouchability (offences) Act, 1955.
- In the year 1976, this act is renamed as Civil Rights Act, 1955.
- Abolition of titles except military and academic.
RIGHT TO FREEDOM (19-22):
ARTICLE 19: Protection of 6 rights.
Right to freedom of speech and expression 19 (1) (a)
(freedom of expression means the right to express one‘s opinion by words of mouth, writing, printing, picture, or in any other manner)
o Right to assemble peacefully and without arms
o Right to form associations
o Right to move freely throughout the territory of India
o Right to reside and settle in any part of the territory of India
o Right to practice any profession or to carry on any occupation, trade or business
o Right to acquire, hold, and dispose of property (deleted through 44th amendment)
Article 20: Protection in respect of conviction for offences.
- No ex-post-facto Legislation:
- No Double Jeopardy
- No Self-incrimination
Article 21: Protection of life and personal liberty except in accordance with the procedures established in law.
- Right to live with human dignity, decent environment, privacy, free education up to 14 years etc.
Article 21 A: Right to free and compulsory education for all the children.
- Note: This was present in Article 45 of the constitution. Through 86th amendment in 2002 it was made a fundamental right. This came into force on April 1, 2010.
Article 22: Protection against arrest and detention in certain cases.
- Under punitive detention: right to be informed of the grounds of arrest, consult a legal practitioner, and produce before the magistrate within 24 hours.
- Under preventive detention: grounds of detention should be communicated, provide an opportunity to make representation.
RIGHT AGAINST EXPLOITATION (23-24):
- Article 23: Prohibition of traffic in human beings and forced labor.
- Article 24: Prohibition of employment of children in factories.
RIGHT TO FREEDOM OF RELIGION (25-28):
Article 25: All persons are equally entitled to
- freedom of conscience,
- the right to freely
- And propagate religion.
Note: Propagation does not include ‗forced conversions‘
Article 26: Freedom to Manage Religious Affairs:
- To establish and maintain institutions for religious and charitable purposes
- Own and acquire movable and immovable property
- Right to administer the property
Article 27: Freedom for Taxation for promotion of a religion.
- No person shall be compelled to pay taxes for the promotion and maintenance of any religion.
Article 28: Freedom from attending religious instruction.
- No religious instruction shall be provided in any educational institute wholly maintained out of state funds.
- Religious instructions permitted if it is established by endowments or trust.
- No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
CULTURAL AND EDUCATIONAL RIGHTS (29-30):
Article 29: Right to conserve language, script or culture.
- The Article 29 grants protection to both religious and linguistic minorities.
Article 30: Right of Minorities to Establish and administer Educational Institutions:
- All Minorities have the right to establish and administer educational institutions of their choice.
RIGHT TO CONSTITUTIONAL REMEDIES (32):
- The Supreme Court and High Courts can issue writs.
- Right to move Supreme Court for the enforcement of Fundamental Rights including the writs of Habeas corpus, Mandamus, Prohibition, Certiorari and Quo warren to.
- Under Article 359 of the constitution provides the right to move Supreme Court can be suspended during national emergency.
According B R Ambedkar Article 32 is the heart and soul of the Indian Constitution.
HABEAS CORPUS: (TO PRODUCE THE BODY).
- This means produce the body.
- It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. Hence this is against arbitrary detention. This can be issued to a private person or public authorities.
Mandamus: (To Command):
- Issued to a public official asking him to perform his official duties that he has failed or refused to perform. (this cannot be issued against President or Governor or CJ of a HC or against any private person).
Prohibition: (to forbid):
- Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
Certiorari (To be certified or to be informed):
- Issued by a higher court to a lower court or tribunal either to transfer case pending with the latter to it or to squash the order of the latter in a case.
Quowarranto (By what Authority?):
- It is issued by a court to enquire into the legality of claim of a person to a public office.
Article 33: The Parliament is empowered to abrogate the fundamental rights of the members of armed forces,
- Para-military forces, police forces, intelligence agencies and other related agencies.
- ü Note: The law made by the Parliament under Article 33 cannot be challenged in the court of law
Article 34: This provides for the restriction of the fundamental rights while martial law is in force in any area within the territory of the country.
Article 35: The Parliament makes laws to give effect to certain specified fundamental rights shall vest only in Parliament and not in the state legislature.
- As per the provisions of the Article 35 the Parliament prescribes residence as a condition for certain employments or appointments in a state or union territory or local authority. (Article 16).
The Parliament can empower the lower courts (Other than Supreme Court and High Courts) to issue directions, orders, and writs of all kinds for the enforcement of the fundamental rights.
- The concept of Martial Law has been borrowed from the English Common Law.
- The words ―Martial law‖ is not defined in the Constitution. The literal meaning is military rule.
- Martial law is imposed to restore the breakdown of law and order due to any reason.
- The concept of ―Equality before law‖ is taken from UK.
- The concept of ―Equal Protection of Laws‖ taken from USA.
- The term ‗untouchability‘ is not defined in the constitution.
- The term minority is not described in the constitution.
- The writs were borrowed from English law and they are known as prerogative writs.
Right to Privacy (Article 21):
- The Supreme Court in the PUCL vs Union of India in 1997, had ruled that telephone conversation in private, without interference, would come within the purview of right to privacy as mandated in the Constitution; and unlawful means of phone tapping amounted to invasion of privacy and were uncivilized and undemocratic in nature.
- The Supreme Court ruled that the right to life under Article 21 of the Constitution would include a
- pollution free environment.
- In January 2012 the Supreme Court observed that the right to life and liberty guaranteed to a citizen
- under Article 21 of the Constitution cannot be taken away without following the due procedure. The mere apprehension of the authorities that an accused was likely to be released on bail was not a ground for passing preventive detention orders.
- As per the directions given by the Supreme Court, under RTE (Right To Education) Act all the Private schools will have to provide 25 percent reservation for poor students from the academic year 2012 -13.