Fundamental Rights

Fundamental rights (Articles 12-35) 

• Fundamental Rights are the fundamental human rights of all citizens. These rights, as defined in Part III of the Constitution, are guaranteed to all people without distinction. 
• They are enforceable in court, subject to certain limitations. 
• These FRs are sanctioned in order to promote the ideal of political democracy. 
• In 1215, England's Magna Carta established the concept of fundamental rights. 
• Fundamental Rights in the Indian constitution is modelled after the 'Bill of Rights' (Fundamental Rights) included in the United States Constitution. 
• This section of the constitution is also known as the Indian Magna Carta. 
• The FRs serve as checks on executive tyranny and arbitrary legislative legislation. 
• Originally, the constitution called for seven FRs. The 44th Amendment Act of 1978, however, repealed the right to property. 

The Constitution of India provides for six Fundamental Rights: 

• 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) 
• The right to property was originally included in the constitution (Article 31). The 44th Amendment Act of 1978, however, removed it from the list of Fundamental Rights. 
• Article 300-A of Part XII of the Constitution makes it a legal right. 

Fundamental Rights' Characteristics 

• Articles 15, 16, 19, 29, and 30 are only available to citizens. 
• Fundamental rights are qualified rather than absolute. FRs can be subject to reasonable restrictions. The Supreme Court decides whether such restrictions are reasonable. 
• These rights strike a balance between individual rights and societal rights, between individual liberty and social control. 
• Most rights are available against state actions, but some are also available against private individual actions. 
• Some FRs have a negative personality, while others have a positive personality. Negative FRs impose restrictions on the government, whereas positive FRs obligate the government to take action. 
• FRs are inherently justifiable. 
• The constitution protects and guarantees FRs. As a result, an aggrieved party can approach the SC directly rather than through an appeal. 
• The provisions of the FRs can be amended by Parliament through a constitutional amendment act as long as they do not violate the basic structure of the Indian constitution. 
• Except for the rights guaranteed by Articles 20 and 21, FRs can be suspended during the operation of a National Emergency. Furthermore, FRs under Article 19 can only be suspended during a state of emergency declared due to war or external aggression. 
• Articles 31A, 31B, and 31C limit the scope of FRs. 
• In the case of armed forces, paramilitary forces, police forces, intelligence agencies, and analogous services, Parliament has the authority to limit or prohibit the application of FR. 
• While martial law is in effect, FR may be restricted. 
• Only Parliament has the authority to enact legislation to enforce the FR. 

State definition (Article 12) 

• Unless the context requires otherwise, "the State" in this Part includes the Government and Parliament of India, as well as the Government and Legislature of each of the States, as well as all local or other authorities within Indian territory or under the control of the Government of India. 
• Union executive and legislative bodies 
• The state's executive and legislative branches 
• All local governments 
• All authorities, both statutory and non-statutory 
• A private body or agency acting as a state instrument can be considered a state. 

ARTICLE 13: LAWS INCONSISTENT WITH OR IN DEROGATION OF THE FUNDAMENTAL RIGHTS 

• (1) All laws in force in India immediately before the commencement of this Constitution that are inconsistent with the provisions of this Part are void to the extent of such inconsistency. 
• (2) The State shall not make any law that takes away or limits the rights conferred by this Part, and any law made in violation of this clause shall be void to the extent of the violation. 
• (3) Unless the context requires otherwise, "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having the force of law in the territory of India;  
• (b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India prior to the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then repealed. 
• (4) Nothing in this article applies to any amendment to the Constitution made in accordance with Article 368. 

Article 13 defines what constitutes law. 

• Permanent legislation passed by Parliament or state legislatures 
• Ordinances are examples of temporary laws. 
• Delegated legislation-style statutory instruments 
• Non-legislative legal sources 
• Even the act of constitutional amendment can be challenged (Keshavananda Bharati case) 

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

• Equality Before the Law: According to Article 14, no one shall be denied treatment of equality before the law or equal protection under the law within the territory of India. 
• All persons, whether citizens or foreigners, statutory corporations, companies, registered societies, or any other type of legal person, have the right. 
• Exceptions: According to Article 361, the President of India or the Governor of a state is not answerable to any court for the exercise of their powers/duties, and no civil or criminal proceedings against them can occur or continue in any court during their term of office. 
• According to Article 361-A, no civil or court proceedings may be initiated against a person for publishing any substantially true report of either House of Parliament or the State Legislature. 
• No member of Parliament (article 105) or the State Legislature (article 194) shall be liable in court for anything said or voted on in Parliament or any committee. 
• Foreign sovereigns (rulers), ambassadors, and diplomats are exempt from criminal and civil prosecution. 

Article 14: Equality before the law and equal protection under the law 

• Legal persons are also included. 
• Equality before the law in the United Kingdom 
• The American constitution guarantees equal protection under the law. 
• It allows the law to classify people, things, and transactions in a reasonable way, but it should not be arbitrary. 
• Individual rights in India are derived from the constitution. 

Exceptions to the rule of equality 

• The president and governor are not held accountable in court for their official actions. 
• During the President's or Governor's term of office, no criminal proceedings shall be instituted or continued in any court. 
• There is no process in place to arrest or imprison the President or Governor. 
• Only after two months' notice can a civil proceeding on personal acts be initiated. There is no liability for accurate reporting in newspapers. 
• No member of Parliament shall be held responsible for anything said or voted on. 
• 31C Article 
• Foreign sovereigns, including the United Nations, enjoy immunity. 

Prohibition of Discrimination:  

• Article 15 states that no citizen shall be discriminated against solely on the basis of religion, race, caste, gender, or place of birth. 
• Exception: Certain provisions can be made for the upliftment of women, children, and citizens from any socially or educationally backward class (such as reservation and access to free education). 

Equality of Opportunity in Public Employment:  

• Article 16 of the Indian constitution guarantees equal opportunity to all citizens when it comes to employment or appointment to any public office. 
• Exceptions: Reservations in appointments or posts are available for any backward class that is underrepresented in state services. 
• In addition, an incumbent of a religious or denominational institution may be a member of that religion or denomination. 

Abolition of Untouchability:  

• Untouchability is abolished in Article 17 and its practice is prohibited in any form. The imposition of any disability resulting from untouchability is a criminal offence punishable by law. 
• A person convicted of 'untouchability' is ineligible for election to Parliament or a state legislature. Offences include: directly or indirectly preaching untouchability. 
• Preventing anyone from entering any shop, hotel, public place of worship, or public place of entertainment. 
• Refusing to admit people to hospitals, educational institutions, or hostels run for the benefit of the public. 
• Justifying untouchability on the basis of tradition, religion, philosophy, or other considerations. 
• Insulting a scheduled caste member on the basis of untouchability. 

Abolition of Titles:  

• Titles are abolished under Article 18 of the Indian Constitution, which includes four provisions: 
• It forbids the state from bestowing any title upon any citizen or foreigner (except a military or academic distinction). 
• It forbids an Indian citizen from accepting any title from a foreign state. 
• Without the consent of the President of India, a foreigner holding any profit or trust office under the state may not accept any title from any foreign state. 
• Without the consent of the president, no citizen or foreigner holding any profit or trust office within the territory of India may accept any present, emolument, or office from or under any foreign State. 

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

• Protection of Six Rights: Article 19 guarantees all citizens the six freedom rights, which include: 
• Right to free expression and expression: Freely expressing one's own views, opinions, beliefs, and convictions through word of mouth, writing, painting, drawing, or any other means. 
• The right to assemble in peace and without arms: This includes the right to hold public gatherings, demonstrations, and processions on public property. 
• It does not protect assemblies or strikes that are violent, disorderly, or riotous. 
• The freedom to form associations, unions, or cooperative societies: It includes the right to form (or not form) political parties, corporations, partnerships, societies, clubs, organisations, trade unions, or any other group of people. 
• The freedom to move freely throughout India's territory: The freedom of movement has two dimensions: internal (the right to move within the country) (article 19) and external (the right to leave the country and return) (article 21). 
• The right to reside and settle in any part of India's territory: Outsiders' right to reside and settle in tribal areas is restricted in order to protect the distinct culture and customs of scheduled tribes, as well as to protect their traditional vocation and properties from exploitation. 
• The ability to practise any profession or carry on any occupation, trade, or business: It does not include the right to practise an immoral (trafficking in women or children) or dangerous profession (harmful drugs or explosives, etc,). 

Protection in Respect of Conviction for Offences 

• Article 20 protects an accused person, whether a citizen, a foreigner or a legal person such as a company or a corporation, from arbitrary and excessive punishment.  
• No ex-post facto law: It states that no one shall be convicted of any offence unless it is a violation of a law in force at the time the act was committed, or subjected to a penalty greater than that prescribed by the law. 
• No double jeopardy: No one shall be prosecuted and punished more than once for the same offence. 
• No self-incrimination: No one accused of a crime shall be compelled to testify against himself. It is not applicable to civil proceedings. 

Protection of Life and Personal Liberty 

• Article 21 states that no one shall be deprived of his life or personal liberty except in accordance with the law. Both citizens and non-citizens have this right. 
• The right to life is not limited to animal existence or survival; it also includes the right to live with human dignity and all aspects of life that contribute to a man's life being meaningful, complete, and worthwhile. 

Right to Education 

• Article 21 (A) declares that the state must provide free and compulsory education to all children aged six to fourteen years. 
• Only elementary education is recognised as a Fundamental Right under this provision, not higher or professional education. 
• The 86th Constitutional Amendment Act of 2002 added this provision. 
• Prior to the 86th amendment, the Constitution included a provision for free and compulsory education for children in Article 45 of Part IV. 

Protection from Arrest and Detention 

• Article 22 protects people who are arrested or detained. 
• There are two types of detention: punitive (punishment after trial and conviction) and preventive (punishment without trial and conviction). 
• The first part of Article 22 deals with ordinary law and includes the following provisions:  
• The right to be informed of the grounds for arrest. 
• The right to consult with and be represented by a legal practitioner. 
• The right to appear before a magistrate within 24 hours, excluding travel time. 
• Unless the magistrate authorises further detention, the right to be released after 24 hours. 

• The second section of Article 22 is concerned with preventive detention law. This article provides protection to both citizens and aliens and includes the following: 
• A person's detention cannot exceed three months unless an advisory board (high court judges) reports sufficient cause for extended detention. 
• The reasons for the detention should be communicated to the detainee. 
• The detainee should be given the opportunity to file an appeal against the detention order. 

Right Against Exploitation (Articles 23 and 24) 

• Prohibition of Human Trafficking and Forced Labor: In the past, landlords, moneylenders, and other wealthy individuals imposed forced labour in India. 
• To protect the country's millions of underprivileged and deprived citizens, Article 23 of the Indian Constitution prohibits human trafficking and begar (forced labour without payment). 
• The right is available to both Indian citizens and non-citizens. 
• The right prohibits human trafficking in the following forms: selling and buying of men, women, and children, Prostitution, Devadasis and Slavery. 
• To address violations of this fundamental right, the Immoral Traffic (Prevention) Act 13, 1956 was enacted. 
• Prohibition of Child Labour: Article 24 of the Indian Constitution prohibits the employment of children under the age of 14 in hazardous jobs such as factories and mines. 
• It did not, however, prohibit their employment in any harmless or innocent work. 
• The Child Labour (Prohibition and Regulation) Act, 1986 (renamed Child & Adolescent Labour (Prohibition and Regulation) Act, 1986 in 2016) addresses violations of this right specifically. 
• This act was amended in 2016 to completely prohibit the employment of children under the age of 14 in all occupations and processes. 
• It also prohibited the employment of minors (aged 14 to 18) in hazardous occupations or processes. 

Right to Freedom of Religion (Article 25-28) 

• Freedom of Conscience, Profession, Practice and Propagation: Article 25 of the Indian Constitution guarantees the freedom of conscience, including the right to profess, practise, and propagate any religion. These rights are available to both citizens and non-citizens. 
• Conscience: A person can choose to follow any religion or not. 
• Right to Profess: One has the right to openly and freely express his or her religious beliefs and faith. 
• Religious worship, rituals, ceremonies, and the exhibition of beliefs and ideas are all protected under the right to practice
• Right to Propagate: Converting people from one religion to another. However, the Constitution prohibits forcible conversions. 
• It merely grants us the right to disseminate information about our religion in order to attract others to it. 
• Limitations: In order to protect public order, morality, and health, the government may impose restrictions on the exercise of religious freedom. 
• The government has the authority to intervene in religious matters in order to eradicate certain social ills. For example, prohibiting sati, bigamy, or human sacrifice. 
• Such restrictions cannot be fought in the name of interfering with the right to religious freedom. 

Freedom to Manage Religious Affairs:  

• Article 26 of the Indian Constitution grants every religious denomination (or any section of it) the right to establish and maintain institutions for religious and charitable purposes. 
• It also gives religious denominations the authority to manage their own religious affairs. 
• Furthermore, every religious denomination has the right to own and acquire movable and immovable property, as well as the right to administer such property. 
• Article 26 rights are also subject to public order, morality, and health considerations. 

Freedom from Taxation for Religious Promotion:  

• Article 27 of the Indian Constitution states that no one shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. 
• It states that no public funds raised through taxes shall be used to promote or maintain any particular religion. 
• Favouring, patronising, or supporting one religion over another is illegal. 
• It only prohibits the imposition of a tax, not a fee. 
• A fee's purpose is to control the secular administration of religious institutions rather than to promote or maintain the religion. 

Freedom from Attending Religious Instruction:  

• Article 28 states that no religious instruction shall be provided in any educational institution that is entirely supported by State (Indian territory) funds. 
• The provision, however, does not apply to educational institutions administered by the state or established under any endowment or trust. 
• Furthermore, no one is compelled to attend religious instruction or worship without his consent in any educational institution recognised by the State or receiving State funding. 
• In the case of a minor, the consent of his or her guardian is required. 

Cultural and Educational Rights (Articles 29 and 30) 

Protection of Interests of Minorities:  

• According to Article 29, every section of citizens residing in any part of the country has the right to protect and conserve its own distinct language, script, or culture (it provides the right to a group/section/community of people). 
• It also states that no citizen shall be denied admission to any educational institution solely on the basis of religion, race, caste, or language (it provides the rights to an individual citizen). 
• Religious, linguistic, and cultural minorities are all protected under Article 29. 
• However, the rights do not have to be limited to minorities, as is commonly assumed. It includes both minorities and the majority. 

Right of Minorities to Establish and Administer Educational Institutions: 

• Article 30 guarantees the following rights to all minorities: 
• The freedom to establish and manage educational institutions of their choosing. 
• The State's compensation amount for the compulsory acquisition of any property of a minority educational institution shall not limit or abrogate the right guaranteed to them. 
• The 44th Amendment Act of 1978 included this provision to protect minorities' rights in this regard. 
• The State shall not discriminate against any minority-run educational institution. 
• As a result, the protection afforded by Article 30 is limited to minorities (religious, cultural, or linguistic) and does not extend to any other group of citizens (as under Article 29). 

Article 31, 31A, 31B and 31C 

• Originally, one of the seven fundamental rights was the right to property, which stated that no one shall be deprived of his property except by authority of law. 
• However, because the right to property is one of the most contentious rights, the 44th Amendment Act of 1978 abolished it as a Fundamental Right and made it a legal right (a constitutional right) under Article 300A in Part XII of the Constitution. 
• Article 31 resulted in several constitutional amendments, including the 1st, 4th, 7th, 25th, 39th, 40th, and 42nd Amendments. 
• Articles 31A and 31B were added to the Constitution by the First Amendment Act of 1951. 
• The 25th Amendment Act of 1971 added Article 31C to the Constitution. 

Article 31A:  

• It protects five types of laws from being challenged and invalidated for violating the fundamental rights guaranteed by Articles 14 and 19. 
• It includes the following: 
• The State acquiring estates and related rights; The State taking over property management; 
• Corporation amalgamation; extinction or modification of corporate directors' or shareholders' rights 
• Mining leases are being terminated or modified. 
• It also guarantees the right to compensation in the event that the state acquires or requisitions private property. 

Article 31B: 

• It protects the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights. 
• The scope of Article 31B is wider than Article 31A as it immunises any law included in the Ninth Schedule from the Fundamental Rights (unlike article 31A which protects only five categories). 
• However, the Supreme Court in its judgement in the I.R. Coelho case (2007) ruled that even laws under the Ninth Schedule would be open to scrutiny if they violated Fundamental Rights or the basic structure of the Constitution. 
• The Supreme Court first propounded the doctrine of the ‘basic structure’ of the constitution in the Kesavananda Bharati on April 24, 1973. 

Article 31C: 

• It included two provisions: 
• It states that no law that seeks to implement the socialistic directive principles outlined in Articles 39 (b) and (c) shall be declared void for violating the fundamental rights guaranteed by Articles 14 or 19. 
• Furthermore, no law containing a declaration that it is for the purpose of carrying out such a policy shall be challenged in any court on the grounds that it does not carry out such a policy. 

As exceptions to the fundamental rights, Articles 31A, 31B, and 31C have been retained. 

Right to Constitutional Remedies (Article 32) 

• Article 32 is regarded as the most important article of the Constitution because it states that the right to have Fundamental Rights protected is a fundamental right in and of itself. 
• It grants the right to recourse for the enforcement of a citizen's fundamental rights. 
• The Supreme Court ruled that Article 32 is a fundamental tenet of the Constitution. As a result, it cannot be reduced or eliminated even through a constitutional amendment. 
• It includes the four provisions listed below: 
• The right to petition the Supreme Court for the enforcement of Fundamental Rights through appropriate proceedings. 
• The Supreme Court shall have the authority to issue directions, orders, or writs to enforce any of the fundamental rights. 
• Parliament has the authority to grant directions, orders, and writs to any other court. 
• Any other court here does not include high courts because (Article 226) has already granted the high courts these powers. 
• Except as otherwise provided by the Constitution, the right to petition the Supreme Court shall not be suspended. 
• In the event of a national emergency, the President has the authority to suspend the right (Article 359). 
• Under Article 32, only the Fundamental Rights guaranteed by the Constitution can be enforced, not any other rights such as non-fundamental constitutional rights, statutory rights, customary rights, and so on. 
• A fundamental right violation is a sine qua non (absolutely necessary condition) for exercising the right conferred by Article 32. 

Articles 33, 34 and 35 

• Article 33 
• It gives Parliament the authority to limit or abolish the fundamental rights of "Members of the Armed Forces," paramilitary forces, police forces, intelligence agencies, and similar forces. 
• The purpose of this provision is to ensure that they carry out their duties properly and that they maintain discipline among themselves. 
• Article 33 confers legislative authority only on Parliament, not state legislatures. 
• Any such law enacted by Parliament cannot be challenged in any court for violating any of the fundamental rights. 
• The term "members of the armed forces" also includes non-combatant armed forces employees such as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, and tailors. 
• Article 34:  
• It provides for restrictions on fundamental rights while martial law is in effect in any area of India's territory. The term martial law' is not defined in the Constitution, but it literally means a military rule. 
• Martial law is imposed in extraordinary circumstances such as war, invasion, insurgency, rebellion, riot, or any violent resistance to the rule of law. 
• Article 34 gives the Parliament the authority to indemnify (compensate) any government servant or other person for any act performed in connection with the maintenance or restoration of order in any area where martial law was in effect. 
• The Parliamentary Act of Indemnity cannot be challenged in any court on the basis of a violation of any of the fundamental rights. 
• Article 35: 
• Article 35 states that the power to make laws and give effect to certain specified fundamental rights rests solely with Parliament, not with state legislatures. 
• Parliamentary Legislative Powers: 
• Making residency a requirement for certain jobs or appointments in a state/UT/local or any other authority. 
• Giving courts other than the Supreme Court and the high courts the authority to issue directives, orders, and writs to enforce fundamental rights. 
• Restriction or abolition of the application of Fundamental Rights to members of armed forces, police forces, and so on. 
• Indemnifying any government employee or other person for any act committed while martial law is in effect in any area. 
• The Parliament has the authority to pass laws imposing penalties for offences such as untouchability, human trafficking, and forced labour. 
• Article 35 broadens the Parliament's authority to enact legislation on specified subjects, including those that may fall under the purview of state legislatures (i.e., State List). 

Conclusion 

• Despite a number of exceptions and restrictions, as well as a lack of permanence, Fundamental Rights are an important part of the Indian Constitution because they: provide necessary conditions for man's material and moral protection, and ensure the liberty of every individual. 
• These rights protect the interests of minorities and the weaker sections of the society while also bolstering India's image as a secular state. 
• They ensure individual dignity and respect by establishing the foundations of social equality and justice.