Fundamental Rights in Indian Constitution

(Part III of the Constitution from Articles 12 to 35)

• Source: Bill of rights – USA
• Originally 7 Fundamental Rights in the Indian Constitution, Presently 6 Fundamental Rights in the Indian Constitution. Right to property deleted by 44th Constitutional Amendment Act 1978. Presently Right to property is a Legal right (Article 300A)
• Fundamental Rights in Indian Constitution are also called as Magna Carta of India.
• Essential for all round development of citizens and to preserve human dignity.
• All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights.

• Fundamental rights in the Indian Constitution are:  
  • • Right to equality—Article 14 to 18
    • Right to freedom—Article 19 to 22
    • Right against exploitation—Article 23 to 24
    • Right to freedom of religion—Article 25 to 28
    • Cultural and educational rights-Article 29 to 30
    • Right to constitutional remedies—Article 32

Fundamental Rights in Indian Constitution

Article 12 – Definition of State

• • “The State” includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Article 13 – Laws Inconsistent With or In Derogation of the Fundamental Rights

• • All laws that are inconsistent with fundamental rights in the Indian Constitution shall be void.
  • The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
    1. 1. Laws of parliament, state legislature
       2. Ordinances
       3. Non legislative sources of law (Convention).
       4. Delegated legislation Word law do not apply for personal laws and constitutional amendment acts.
  • Thus, not only a legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void.
  • Note – the Supreme Court held in the Kesavananda Bharati case (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.

ARTICLE 14 – 18 : RIGHT TO EQUALITY 

Article 14 – Equality before Law

• • Equality before law: Rule of law (Dicey) – Basic feature of the constitution.  
    • • No punishment except for breach of law.
      • Equal subjection of citizens to same law administered by ordinary law courts.
      • Primacy of the rights of the Individual.
  • It states that – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
  • NOTE – Equality before the law means that every person (including aliens) shall be treated equally by the law. There are certain exceptions (E.g. Article 361, Diplomatic Immunity).
  • Equal Protection of law means law must operate equally among equals. Rolling out special schemes only for BPL category does not amount to violation of Article 14 as it attempts to bring BPL category towards non BPL category (reduce inequality).

Exceptions –

• • President of India and Governor of the state –
    • 1. No criminal proceedings during their term of office
      2. not answerable to any court for the exercise and performance of the powers and duties of his office
      3. No process for the arrest or imprisonment
      4. No civil proceedings
  • Foreign sovereigns, ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
  • Article 31C – an exception to Article 14. Laws made for implementing DPSP under 39(b), 39(c).
  • Article 105, 194 – MLAs and MPs are not liable for any of their action in respect of anything said or any vote given by him in Parliament or any committee thereof inside legislature.
  • Article 361A – No person shall be liable for true reporting of proceedings of Parliament and State Legislature.

Equal Protection of Law:

Equals shall be treated equally. Aristotle concept. Reservations are justified based on this.  

Article 15 – Prohibition of Discrimination on Certain Grounds

1. 1. State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
   2. No discrimination in giving Access to shops, Public restaurants, hotels and places of public entertainment – applicable to state.
   3. No discrimination in Use of wells, tanks, bathing Ghats maintained by state funds for general public. Applies to both citizens and state.
   4. Nothing in this article shall prevent the State from making any special provision for women and children.
   5. State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Exceptions –

• • Women and children, educationally and socially backward classes of citizens.
  • 93rd Amendment Act – Reservations in Private educational institutions for OBCs other than Minority educational Institutions. Creamy layer is applicable for OBC reservations.

Article 16 – Equality of Opportunity in Public Employment

• • Equal opportunity in Public employment. No citizen can be discriminated or made ineligible for employment of any office under the state and the grounds of only religion, race, caste, sex, descent, place of birth or residence. (Under article 15 descent, residence do not exist)

Exceptions –

• • Parliament by law only can make exceptions. (State legislature cannot make any law)
    • Residence as conditions for certain types of employment or appointment in a state or union territory or local authority. Example 371D in Andhra Pradesh.
    • The State can provide for Reservations to socially and educationally backward classes in that state.
    • The incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

Mandal Commission

• • Appointed by Morarji Desai In 1979, under the chairmanship of B P Mandal.
  • Commission was appointed under Article 340 of the constitution to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement.
  • The commission submitted its report in 1980 and identified 52% of the population as socially and educationally backward classes.
  • Commission recommended 27% reservation for OBCs in government jobs so that the total reservation for all (SCs, STs and OBCs) amounts to 50%.
  • In 1990, V P Singh Government declared reservation of 27% government jobs for the OBCs.
  • Again in 1991, the Narasimha Rao Government introduced the concept of economic reservation –
    • • Preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in granting reservation, and
      • Reservation of another 10% of jobs for poorer (economically backward) sections of higher castes who are not covered by any existing schemes of reservation.

Indra Sawhney v. Union of India, (1992) or Mandal Case

• • The Court has rejected the additional reservation of 10% for poorer sections of higher castes but upheld the constitutional validity of 27% reservation for the OBCs with certain conditions –

1. 1. 1. 1. Exclusion of Creamy Layer from OBC Reservation.
         2. No reservation in promotions; reservation should be confined to initial appointments only.
         3. Total reservations shall not exceed 50% (including carry forward jobs).
         4. Permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.
         5. Merit shall not compromise.

• • For the Supreme Court ruling Government took following steps –

1. 1. 1. 1. Ram Nandan Committee was appointed to identify the creamy layer among the OBCs.
         2. National Commission for Backward Classes was established in 1993 by an act of Parliament. It excludes or includes the lists of backward caste for the job reservation.
         3. 77th amendment Act, 1995 – it provides reservation in promotions in favour of SCs and STs If they are not adequately represented in the services.
         4. 81st amendment act, 2000 – It empowers the state to fill backlog vacancies even if they cross 50% reservation ceiling on total number of vacancies of that year. In brief, it ends the 50% ceiling on reservation in backlog vacancies.
         5. 85th amendment act, 2001 – it provides consequential seniority for SCs, STs with retrospective effect from June 1995.

Article 17 – Abolition of Untouchability

• • “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.
  • The Constitution abolishes untouchability and its practice in any form is forbidden. The following actions are considered as offences on the grounds of untouchability
    • • Refusing admission to any person to the public institutions
      • Preventing any person from worshipping in place of public worship
      • Insulting a member of Scheduled Caste on the grounds of untouchability
      • Preaching untouchability directly or indirectly
      • Justifying untouchability on traditional, religious, philosophical or other grounds
      • Insulting a person belonging to scheduled caste on the ground of untouchability
      • Refusing to sell goods or render services to any person.

• • Abolishes untouchability applicable to state and private citizens.

1. 1. 1. Protection of Civil rights act is meant to enlarge scope of this article.
      2. Term untouchability not defined in Constitution or civil rights protection act.
      3. Practice of Untouchability can disqualify an individual to contest in elections.

• • Punishments for violations include – minimum jail sentence of 6 months and/or fine, or the person can be permanently debarred from contesting any elections in the country.
  • Parliament, for this purpose, enacted ‘The Untouchability offenses Act, 1955’. This was renamed as ‘The Civil Rights Protection Act’ in 1976.

Article 18 – Abolition of Titles

• • State cannot confer any title on a citizen or foreigner.

1. 1. 1. No title, not being a military or academic distinction, shall be conferred by the State.
      2. No citizen of India shall accept any title from any foreign State
      3. 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.
      4. No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

• • All titles national or foreign which create artificial distinctions in social status amongst the people have been abolished.
  • To recognise the meritorious service rendered by individual citizens to the country or mankind, the President of India can confer civil and military awards on those individuals for their services and achievements such as; Bharat Ratna, Padma Vibhushan, Padma Sri, Param Veer Chakra, Veer Chakra etc., but these cannot be used on ‘titles’.

ARTICLE 19 – 22: RIGHT TO FREEDOM

 Article 19 – Freedom Rights

• • The Constitution guarantees the following six Fundamental Freedoms at present –
    • Freedom of speech and expression
    • Freedom to assemble peacefully without arms
    • Freedom to form associations or unions
    • Freedom to move freely throughout the territory of India
    • Freedom to reside and settle in any part of the territory of India
    • Freedom to practise any profession or occupation or business
  • Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
  • These six rights are protected against only state action and not private individuals. Moreover, these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc.

Article 19 – 1(a) – Freedom of Speech and Expression

• • • Every citizen has right to express his beliefs and convictions freely by word of mouth, writing, printing, picturing or in any other manner.
    • The Supreme Court held that the freedom of speech and expression includes the following –

• • • • • Right to propagate one’s views as well as views of others.
        • Freedom of the press.
        • Freedom of commercial advertisements.
        • Right against tapping of telephonic conversation.
        • Right to telecast, that is, government has no monopoly on electronic media.
        • Right against bundh called by a political party or organisation.
        • Right to know about government activities.
        • Freedom of silence.
        • Right against imposition of pre-censorship on a newspaper.
        • Right to demonstration or picketing but not right to strike.

• • • Reasonable Restrictions – on the grounds of Sovereignty and Integrity of India, Security of State Friendly relation with foreign states. Public Order, Decency or Morality, contempt of court, deformation, incitement to an offense.

Article 19 – 1(b) – Freedom of Assembly

• • • Every citizen has to right to assemble peacefully without arms. They can conduct meetings, demonstrations and take out processions. This right does not include right to strike.
    • Reasonable Restrictions – Sovereignty and Integrity of India, Public order including the maintenance of traffic in the area concerned.
    • Section 144 of CrPC allows magistrate to restrain an assembly or meeting or procession if there is a risk of obstruction, annoyance or danger to human life, health or safety or a riot.
    • Under section 141 IPC assembly of 5 or more persons can be made unlawful.

Article 19 – 1(c) – Freedom to Form Associations or Unions

• • • All citizens have right to form associations or unions or cooperative societies.
    • Freedom to form Associations includes association of political, social or cultural. Further, it also gives the right to join or not join associations or right to continue or not to continue with any association. It also gives the right to form trade unions.
    • Reasonable Restrictions – Sovereignty and Integrity of India, Public Order and Morality.
    • Article 33 of the constitution empowers the parliament to pass a law restricting the right to form political association to members of armed forces, persons employed in any bureau or other organizations established by the state for the purpose of intelligence or counter intelligence, persons employed in or in connection with the telecommunications system.
    • The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out. The right to strike can be controlled by an appropriate industrial law.

 Article 19 – 1(d) – Freedom of Movement

• • • Citizen can move freely throughout the territory of the country.
    • This right underline the idea that India is one unit so far as the citizens are concerned. Thus, the purpose is to promote national feeling and not parochialism.
    • Reasonable Restrictions – on the grounds of the interests of general public and the protection of interests of any scheduled tribe.
    • The freedom of movement has two dimensions, i.e., internal and external. Article 19 protects only the first dimension. The second dimension is dealt by Article 21 (right to life and personal liberty).

Article 19 – 1(e) – Freedom of Residence

• • • Every citizen has right to reside and settle any part of the country.
    • This right has two parts –
      1. 1. The right to reside in any part of the country, which means to stay at any place temporarily.
         2. The right to settle in any part of the country, which means to set up a home or domicile at any place permanently.
    • Reasonable Restrictions – on the grounds of Security, Public order, General public interest, protection of interest of scheduled tribes. This right is subject to certain restriction in areas like scheduled areas or border areas.
    • The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.

Article 19 – 1(f) –

• • • Removed by 44th amendment Act

Article 19 – 1(g) – Freedom to Practise Any Profession

• • • Citizens has right to practice any profession, occupation, trade or business.
    • Reasonable Restrictions – General public interest, Further, the State is empowered to –

1. 1. 1. 1. 1. Prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.
            2. Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.

• • • This right does not include the right to carry on a profession or business or trade or occupation that is immoral or dangerous.

Article 20 – Protection In Respect of Conviction for Offences

• • Protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like company or corporation.
  • It contains three provisions –

1. 1. 1. No ex post facto laws – No person shall be
         1. • Convicted of any offence except for violation of a law in force at the time of the commission of the act, nor
            • Subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act. Convicted by applying law backwards.
            • Applies only to criminal laws not to civil and tax laws. Do not apply to prevention detention.
      2. No double Jeopardy – No person shall be prosecuted and punished for the same offense twice. Available only for proceedings before a court of law or judicial tribunal. Not before depart mental and administrative authorities.
      3. No Self Incrimination – No person shall be witness of his own case. No person accused of any offence shall be compelled to be a witness against himself. Blood samples, specimen signatures, thumb impressions, exhibition of body, production of material objects are not covered.

Article 21 – Protection of Life and Personal Liberty

• • 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.
  • The Constitution lays down that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. It guarantees that life or personal liberty shall not be taken away without the sanction of law. It ensures that no person can be punished or imprisoned merely at the whims of some authority. He/she may be punished only for the violation of the law.

Gopalan Case, 1950

• • Supreme Court held that –
    • Protection under article 21 is available only against arbitrary executive action and not from arbitrary legislative action. The State can deprive the right to life and personal liberty of a person based on a law.
    • The Supreme Court held that the ‘personal liberty’ means only liberty relating to the person or body of the individual.

Menaka Case, 1978

• • The Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21.
  • Supreme Court ruled that –
    1. The right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. The protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action.
    2. The right to life also includes the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living.

• • The Supreme Court has reaffirmed its judgement in the Menaka case in the subsequent cases. It has declared the following rights as part of Article 21 –

• • • • Right to live with human dignity.
      • Right to decent environment including pollution free water and air and protection against hazardous industries.
      • Right to livelihood.
      • Right to privacy.
      • Right to shelter.
      • Right to health.
      • Right to free education up to 14 years of age.
      • Right to free legal aid.
      • Right against inhuman treatment.
      • Right of women to be treated with decency and dignity.
      • Right to information.
      • Right to social security and protection of the family
      • Right to social and economic justice and empowerment
      • Right to appropriate life insurance policy etc.

Article 21A- Right to Education

• • State shall provide for free and compulsory education to children in the age of 6 to 14 years in such a manner as a state may determine (86th constitution amendment act, 2002).
  • It was earlier under Article 45 of the Constitution as a part of Directive Principles of State Policy. 86th amendment act also amended Article 45, article 51 (a).
  • Right to Education Act, a law required to execute this right, was passed by the Parliament in 2009. According to the law, 25% of the seats have to be reserved for economically backward section even in private institutions, only exception being minority institutions.
  • In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act seeks to provide that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

Article 22 – Prevention against Arbitrary Arrest & Detention

• • No person can be arrested and/or be detained in custody without being informed of the grounds for detention.
  • Right to consult and be defended by a lawyer of his/her choice.
  • Right to be produced before a magistrate within 24 hours excluding journey and holidays.
  • Shall not be detained for more period than authorised by magistrate.
  • These safeguards however are not available to foreigners as well as to those citizens detained under Preventive Detention Act.
  • Punitive detention: to punish a person for an offence committed by him after trial and conviction in a court.
  • Preventive detention: When the State feels that a person is likely to commit crime or is a threat to the security of the State, he/she may be detained without trial for a limited period. Can be detained for 3 months under a preventive detention law. Beyond that advisory board shall permit. The board shall consist of Judges of High Court.
  • Parliament by law increase the period of preventive detention for more than three months without obtaining opinion of advisory board.
  • Legislative power with regard to preventive detention is divided between parliament and state legislature.

This is the Part 1st of the Fundamental Rights in the Indian Constitution (From Article 12 to 22).

The Next Post (Click Here), discusses the 2nd part of the Fundamental Rights in the Indian Constitution (From Article 23 to 35).

For Notes on Fundamental Duties Click Here.