Fundamental Rights in the Indian Constitution
(Part III of the Constitution from Articles 12 to 35)
Table of Contents
- Source: Bill of rights – USA
- Originally 7 Fundamental Rights, Presently 6 Fundamental Rights. Right to property deleted by 44th Constitutional Amendment Act 1978. Presently Right to property-Legal right (Article 300A)
- 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 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
Till now, we have discussed about Right to equality and Right to freedom. From here, we will learn about the remaining fundamental rights.
Fundamental Rights in Indian Constitution
ARTICLE 23 & 24 : RIGHT AGAINST EXPLOITATION
Article 23 – Prohibition of Traffic in Human Being and Forced Labour
- It is available against state and private citizen. This right is available to both citizens and non-citizens.
- The expression ‘traffic in human beings’ include –
- selling and buying of men, women and children like goods;
- immoral traffic in women and children, including prostitution;
- To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act, 1956.
- Exception – It permits the State to impose compulsory service for public purposes. State can impose compulsory service for public purpose without any discrimination on grounds only of religion, race, caste, class.
Article 24 – Prohibits Employment of Children in Hazardous Industries
- Prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work.
- The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National and State Commissions for Protection of Child Rights.
- In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, shops, factories etc.
- Child Labour (Prohibition & Regulation) Amendment Act, 2016, amended the Child Labour (Prohibition and Regulation) Act, 1986. It prohibits all kinds of employment of children below 14 years and 14 to 18 years children in Hazardous industries.
- Punishment – imprisonment of 6 months to 2 years, or a fine of 20,000 to 50,000, or both. In case of repeated offences, the imprisonment is of 1 year to 3 years.
ARTICLE 25 TO 28: RIGHT TO FREEDOM OF RELIGION
Article 25 – Freedom of Conscience and Free Profession, Practice and Propagation of Religion
- Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
- nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
- Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
- Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
- The inferences of these are:
- Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.
- Right to profess: Declaration of one’s religious beliefs and faith openly and freely.
- Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
- Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. But, it does not include a right to convert another person to one’s own religion.
- Reasonable Restrictions: Public Order, Morality, Health and to the other provisions of Part III of constitution.
- State can also regulate economic, political activity associated with religion. It can provide welfare, reform of religious institutions.
- Right to propagate does not include right to convert. This means no one has the right to convert another person to his own religion by force, fraud or by offering incentives.
- Hindus under Article 25 includes Hindus, Sikhs, Jains and Buddhists.
- The inferences of these are:
- In the West, the state has nothing to do with religion.
- In India, the state will remain neutral in the matters of religion.
- This means, if a state seeks to promote religion, it has to promote all religions equally.
- Secularism is seen as a means to promote communal harmony.
Why aren’t we able to achieve a secular society?
- Considering Hindu-Muslim communalism, the wounds of partition have not healed so far.
- Imbalances in development in the Hindu and Muslim community.
- These imbalances were brought out by Sachar Committee Report (2006).
- Majority of communities have not been magnanimous enough to accommodate the diversity of this country.
- Absence of Uniform Civil code.
- There is no effective framework, legal or institutional, to check communalism and promote National Unity.
Article 26 – Freedom to Manage Religious Affairs
- Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
- To establish and maintain institutions for religious & charitable purposes;
- To manage its own affairs in matters of religion;
- To own and acquire movable and immovable property;
- To administer such property in accordance with law.
- Every religious sect has the right to establish and maintain institutions for religious and charitable purposes.
- Each religious group is also free to purchase and manage its movable and immovable property in accordance with law, for the propagation of its religion.
- The Supreme Court held that a religious denomination must satisfy three conditions:
- should be a collection of individuals who have a system of beliefs.
- should have a common organisation; and
- should be designated by a distinctive name.
- Under the above criteria, the Supreme Court held that the ‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious denominations within the Hindu religion. It also held that Aurobindo Society is not a religious denomination.
- Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
Article 27 – Freedom as to payment of taxes for promotion of any particular religion
- No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
- The State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.
- Freedom from taxation for religious institutions – tax cannot be levied but fees against the service can be levied.
Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions
- No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
- 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 or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
- No child can be compelled to receive religious instructions against his /her wishes.
- If religious denominations are set up under religious denominations or charitable trusts, religious education can be provided at such institutions and students can be compelled to attend.
ARTICLE 29 & 30: CULTURAL AND EDUCATIONAL RIGHTS
- Also referred to as Rights of Minorities.
- Types of minorities identified under the Indian Constitution are primarily Linguistic and Religious.
Article 29 – Protection of interests of minorities
- Any section of the citizens residing in any part of India having distinct language and culture shall have right to protect the same. (Collective right).
- It is a group right, it is available for both religious and linguistic minorities.
- No citizen can denied admission into any educational institutions maintained by the state or receiving aid from the state only on grounds of religion race, caste or language.
- The Supreme Court held that the right to conserve the language includes the right to agitate for the protection of the language.
Article 30 – Right of minorities to establish and administer educational institutions
- All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
- These institutions enjoy right to property, reservations for OBCs (93rd Amendment act) do not apply to these institutions.
- The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
- The right under Article 30 also includes the right of a minority to impart education to its children in its own language.
Article 31 – Right to Property
- Right to Property repealed by 44th amendment act, now it is a legal right under article 300A.
- Right to Property exists for Minority educational institutions as a fundamental right.
- It prohibits certain categories of laws from being challenged and invalidated for violation of article 14 and 19. They are related to land reforms, industry and commerce.
- Acquisition of States, Management of properties, amalgamation of corporations, modifications of rights of directors and shareholders, modification of mining leases ,
- It states acts and regulations placed in ninth schedule do not come under Judicial review. Ninth schedule, 1st amendment act are related to this.
- In IR Coelho case, Supreme Court stated that laws placed under 9th schedule (April 24th 1973) comes under judicial review. Judicial review was stated as part of basic structure of constitution.
- Article 31C was introduced by 25th Amendment Act, 1971. This is also an exception to Right to property.
- 42nd Amendment Act, 1976 expanded the scope of Article 31C. Accordingly, if a law is made to give effect to any Directive Principle and if it violates Article 14 and 19, it shall not be an invalid law.
- In the case of Minerva mills Vs. Union of India, 1980, this expansion beyond 39 (B) and (C) was considered unconstitutional and struck down.
- Article 31D was added by the 42nd Amendment Act, 1976. According to this, if any law is made in the context of checking anti – national activities, even if it violates Article 14 and 19, it shall be a valid law.
- Article 31D was removed from the constitution by the 43rd Amendment Act, 1977.
ARTICLE 32: RIGHT TO CONSTITUTIONAL REMEDIES
- Part III of the Constitution provides for legal remedies for the protection of these rights against their violation by the State or other institutions/individuals. It entitles the citizens of India to move the Supreme Court or High Courts for the enforcement of these rights. The State is forbidden from making any law that may be in conflict with the Fundamentals Rights.
- The Constitution empowers the Supreme Court and High Courts to issue orders or writs. It broadly provides for five kinds of “prerogative” writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition.
- Right to constitutional remedies
- It is a basic feature of constitution, parliament can empower any subordinate court to issue writs of all kinds.
- President can suspend the right to move to any court for enforcement of fundamental right during national emergency.
- Supreme Courts can issue writs only for the restoration and enforcement of Fundamental Rights whereas High Courts can issue writs for Fundamental Rights and any other issues also.
- Supreme Court has writ jurisdiction across the territory of India whereas jurisdiction of High Courts are restricted to the particular state.
- Parliament can restrict, abrogate fundamental rights of armed forces, para military, police forces, intelligence agencies. (State Legislature cannot make a law on this).
- Members of armed forces are also include other service providers to the armed forces. Example: Cooks and Carpenters.
- It provides for the restrictions on Fundamental rights while martial law in force.
- In any area within the territory of India.
- It empowers Parliament to indemnify any government servant or any other person where martial law in force.
- Parliament only has power to make laws with respect to –
- Residence as a criteria for public employment
- To empower courts and other than Supreme Court and high courts to issue writs orders, directions for enforcement of fundamental rights.
- To make laws to take away fundamental rights for armed forces – para military and police.
- to indemnify the acts of government servant during marital law,
- Parliament can also make laws for punishment of offenses declared under fundamental rights. Example: untouchability, trafficking etc.,
Rights outside Part – III of Constitution
- They are not fundamental rights but they are constitutionally guaranteed legal rights.
- Article 265 : No tax can be levied or collected except by authority of law
- Article 300A : Right to property
- Article 301: Trade, Commerce and Inter course throughout territory of India.
- Article 326 : Right to Vote
- Under Article 226 High Courts have Writ Jurisdiction on these rights.
Suspension of Fundamental Rights
- During National Emergency under Article 352
- President can proclaim a state of emergency in the threat of war, external aggression or armed rebellion.
- Under Article 358, if National Emergency is imposed on grounds of war or external aggression, six rights under Article 19 stand automatically suspended.
- Under Article 359, other rights can also be suspended but a separate notification has to be issued by the President.
- Article 20 and 21 can never be suspended.
- Constitutional emergency and financial emergency have no impact on Fundamental Rights.
Features of Fundamental Rights
- Few are available only to citizens not to foreigners (Article 15,16,19,29 and 30).
- Available to citizens and foreigners too but not enemy aliens (Article 14,20,21,21A,22,23,24,25,26,27,28)
- Fundamental rights available against private citizens too – Article 15,17,23,24,32 (only Habeas corpus)
- They are not absolute but qualified i.e. certain reasonable restrictions can be imposed upon them. However, whether such restrictions are reasonable or not is to be decided by the courts.
- Most of them are available against the arbitrary action of the State, with a few exceptions like those against the State’s action only are violated by private individuals.
- Most of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.
- They are justiciable.
- Defended and guaranteed by the Supreme Court (article 32) and High court (Article 226).
- They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act.
- They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
- Their scope of operation is limited by Article 31A, 31B, 31C.
- Their application can be restricted or suspended while martial law is in force in any area.
- Fundamental Rights of people occupying sensitive positions (Armed Forces, Intelligence Agencies etc.) can be restricted or even denied by Parliament by law.
- Most of the Right are self-executory i.e. the parliament need not make laws to implement these Rights. There are certain exceptions e.g. For Right to Education under Article 21A, a law was required by the parliament.
Criticism to Fundamental Rights
- Subjected to innumerable exceptions, restrictions, qualifications and explanations.
- The critics remarked that the Constitution grants Fundamental Rights with one hand and takes them away with the other.
No Social and Economic Rights
- Mainly consists of political rights.
- Makes no provision for important social and economic rights like right to social security, right to work, right to employment, right to rest and leisure and so on.
- Many terms are not clearly defined such as Minorities, Public orders, reasonable restrictions etc.
- Language used is very complicated and beyond the limits of common man.
- It is alleged that constitution was made by the lawyers for the lawyers.
- not sacrosanct or immutable as the Parliament can curtail or abolish them eg – Right to Property
- The judicially innovated ‘doctrine of basic structure’ is the only limitation on the authority of Parliament to curtail or abolish the fundamental right.
Suspension during Emergency
- The suspension of Fundamental rights enforcement during the operation of National Emergency (except Articles 20 and 21) is another blow on the efficacy of these rights.
- The judiciary has been made responsible for defending and protecting these rights against the interference of the legislatures and executives.
- Judicial process is too expensive and hinders the common man from getting his rights enforced through the courts.
- no democratic country in the world has made preventive detention as an integral part of their Constitutions as has been made in India.
- The critics assert that the provision for preventive detention (Article 22) takes away the spirit and substance of the chapter on fundamental rights.
No Consistent Philosophy
- According to some critics, the chapter on fundamental rights is not the product of any philosophical principle.
Significance of Fundamental Rights
- They constitute the bedrock of democratic system in the country.
- They provide necessary conditions for the material and moral protection of man.
- They serve 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.
- They strengthen 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.
- They ensure the dignity and respect of individuals.
- They facilitate the participation of people in the political and administrative process.
So, this is the Part 2 of the Fundamental Rights in the Indian Constitution (From Article 23 to 35). For First Part of Fundamental Rights in Indian Constitution Click Here.
You can find out about the Fundamental Duties Here.
The Next Post (Click Here), will discuss about the Directive Principles of the State Policy as mentioned in Indian Constitution in Part IV.