Part III

Fundamental Rights
Rights which are essential or fundamental for the well-
being of a person are called Fundamental Rights. The
Fundamental Rights in India enshrined in the Part III of
the Constitution of India guarantee civil liberties such that
all Indians can lead their lives in peace and harmony as
citizens of India. These include individual rights common to
most liberal democracies, such as equality before law,
freedom of speech and expression, freedom of association
and peaceful assembly, freedom to practice religion, and
the right to constitutional remedies for the protection of
civil rights by means of writs such as habeas corpus.
Violations of these rights result in punishments as
prescribed in the Indian Penal Code, subject to discretion of
the judiciary. The Fundamental Rights are defined as basic
human freedoms which every Indian citizen has the right to
enjoy for a proper and harmonious development of
personality. These rights universally apply to all citizens,
irrespective of race, place of birth, religion, caste, creed,
colour or sex. They are enforceable by the courts, subject
to certain restrictions. The Rights have their origins in many
sources, including England's Bill of Rights, the United States
Bill of Rights and France's Declaration of the Rights of Man.
Six FR
The six fundamental rights are:

3.Right to equality (Art

14,15,16,17,18)
4.Right to freedom (Art 19,20,21,22)
5.Right against exploitation (Art 23,24)
6.Right to freedom of religion (Art
25,26,27,28)
7.Cultural and educational rights (Art
29,30)
 FR
• Rights literally mean those freedoms which are
essential for personal good as well as the good of
the community. The rights guaranteed under the
Constitution of India are fundamental as they have
been incorporated into the Fundamental Law of
the Land and are enforceable in a court of law.
However, this does not mean that they are
absolute or that they are immune from
Constitutional amendment.
• Fundamental rights for Indians have also been
aimed at overturning the inequalities of pre-
independence social practices. Specifically, they
have also been used to abolish untouchability and
hence prohibit discrimination on the grounds of
religion, race, caste, sex, or place of birth. They
also forbid trafficking of human beings and forced
labour. They also protect cultural and educational
rights of ethnic and religious minorities by allowing
History
In 1919, the Rowlatt Acts gave extensive
powers to the British government and police, and
allowed indefinite arrest and detention of
individuals, warrant-less searches and seizures,
restrictions on public gatherings, and intensive
censorship of media and publications. The public
opposition to this act eventually led to mass
campaigns of non-violent civil disobedience
throughout the country demanding guaranteed
civil freedoms, and limitations on government
power. Indians, who were seeking independence
and their own government, were particularly
influenced by the independence of Ireland and
the development of the Irish constitution. Also,
the directive principles of state policy in Irish
constitution were looked upon by the people of
India as an inspiration for the independent India's
government to comprehensively tackle complex
History
In 1928, the Nehru Commission composing of
representatives of Indian political parties
proposed constitutional reforms for India that
apart from calling for dominion status for India
and elections under universal suffrage, would
guarantee rights deemed fundamental,
representation for religious and ethnic
minorities, and limit the powers of the
government. In 1931, the Indian National
Congress (the largest Indian political party of
the time) adopted resolutions committing itself
to the defense of fundamental civil rights, as
well as socio-economic rights such as the
minimum wage and the abolition of
untouchability and serfdom. Committing
themselves to socialism in 1936, the Congress
leaders took examples from the constitution of
the erstwhile USSR, which inspired the
History
When India obtained independence on 15
August 1947, the task of developing a
constitution for the nation was undertaken
by the Constituent Assembly of India,
composing of elected representatives under
the presidency of Rajendra Prasad. While
members of Congress composed of a large
majority, Congress leaders appointed
persons from diverse political backgrounds
to responsibilities of developing the
constitution and national laws. Notably,
Bhimrao Ramji Ambedkar became the
chairperson of the drafting committee, while
Jawaharlal Nehru and Sardar Vallabhbhai
Patel became chairpersons of committees
and sub-committees responsible for
Judicial protection
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. It is not necessary that the
aggrieved party has to be the one to do
so. Poverty stricken people may not
have the means to do so and therefore,
in the public interest, anyone can
commence litigation in the court on
their behalf. This is known as "Public
interest litigation". In some cases, High
Court judges have acted on their own
FR
These Fundamental Rights help not only in
protection but also the prevention of gross
violations of human rights. They emphasize on
the fundamental unity of India by guaranteeing
to all citizens the access and use of the same
facilities, irrespective of background. Some
Fundamental Rights apply to the persons of any
nationality whereas others are available only to
the citizens of India. The right to life and
personal liberty is available to all people and so
is the right to freedom of religion. On the other
hand, freedoms of speech and expression and
freedom to reside and settle in any part of the
country are reserved to citizens alone, including
non-resident Indian citizens. The right to
equality in matters of public employment
cannot be conferred to overseas citizens of
FR
Fundamental rights primarily protect individuals
from any arbitrary state actions, but some rights are
enforceable against individuals. For instance, the
Constitution abolishes untouchability and also
prohibits begar. These provisions act as a check both
on state action as well as the action of private
individuals. However, these rights are not absolute or
uncontrolled and are subject to reasonable restrictions
as necessary for the protection of general welfare.
They can also be selectively curtailed. The Supreme
Court has ruled that all provisions of the Constitution,
including Fundamental Rights can be amended.
However, the Parliament cannot alter the basic
structure of the constitution. Features such as
secularism and democracy fall under this category.
Since the Fundamental Rights can only be altered by a
constitutional amendment , their inclusion is a check
not only on the executive branch, but also on the
Parliament and state legislatures.
Emergency
A state of national emergency has
an adverse effect on these rights.
Under such a state, the rights
conferred by Article 19 (freedoms of
speech, assembly and movement,
etc.) remain suspended. Hence, in
such a situation, the legislature may
make laws which go against the
rights given in Article 19. Also, the
President may by order suspend the
right to move court for the
enforcement of other rights as well.
Right to equality
• Right to equality is an important right
provided for in Articles 14, 15, 16, 17 and
18 of the constitution. It is the principal
foundation of all other rights and liberties,
and guarantees the following:
• Equality before law: Article 14 of the
constitution guarantees that all citizens
shall be equally protected by the laws of the
country. It means that the State cannot
discriminate against a citizen on the basis of
caste, creed, colour, sex, religion or place of
birth.
• Social equality and equal access to public
areas: Article 15 of the constitution states
that no person shall be discriminated on the
basis of caste, colour, language etc. Every
Equality in employment
Equality in matters of public employment:
Article 16 of the constitution lays down that
the State cannot discriminate against
anyone in the matters of employment. All
citizens can apply for government jobs.
There are some exceptions. The Parliament
may enact a law stating that certain jobs
can only be filled by applicants who are
domiciled in the area. This may be meant
for posts that require knowledge of the
locality and language of the area. The State
may also reserve posts for members of
backward classes, scheduled castes or
scheduled tribes which are not adequately
represented in the services under the State
to bring up the weaker sections of the
Art 17 , 18
Abolition of untouchability: Article 17 of the
constitution abolishes the practice of untouchability.
Practice of untouchability is an offense and anyone
doing so is punishable by law. The Untouchability
Offences Act of 1955 (renamed to Protection of Civil
Rights Act in 1976) provided penalties for preventing a
person from entering a place of worship or from taking
water from a tank or well.

Abolition of Titles: Article 18 of the constitution

prohibits the State from conferring any titles. Citizens
of India cannot accept titles from a foreign State . The
British government had created an aristocratic class
known as Rai Bahadurs and Khan Bahadurs in India —
these titles were also abolished. However, Military and
academic distinctions can be conferred on the citizens
of India. The awards of Bharat Ratna and Padma
Vibhushan cannot be used by the recipient as a title
and do not, accordingly, come within the
constitutional prohibition".
Right to freedom

The Constitution of India contains the right to

freedom, given in articles 19, 20, 21 and 22, with the
view of guaranteeing individual rights that were
considered vital by the framers of the constitution.
The right to freedom in Article 19 guarantees the
following six freedoms:

• Freedom of speech and expression, which enable an

individual to participate in public activities. The
phrase, "freedom of press" has not been used in
Article 19, but freedom of expression includes
freedom of press. Reasonable restrictions can be
imposed in the interest of public order, security of
State, decency or morality.
• Freedom to assemble peacefully without arms, on
which the State can impose reasonable restrictions in
the interest of public order and the sovereignty and
integrity of India.
• Freedom to form associations or unions on which the
State can impose reasonable restrictions on this
Right to freedom
• Freedom to move freely throughout the territory of
India though reasonable restrictions can be imposed
on this right in the interest of the general public, for
example, restrictions may be imposed on movement
and travelling, so as to control epidemics.
• Freedom to reside and settle in any part of the
territory of India which is also subject to reasonable
restrictions by the State in the interest of the general
public or for the protection of the scheduled tribes
because certain safeguards as are envisaged here
seem to be justified to protect indigenous and tribal
peoples from exploitation and coercion. Article 370
restricts citizens from other Indian states and
Kashmiri women who marry men from other states
from purchasing land or property in Jammu &
Kashmir.
• Freedom to practice any profession or to carry on
any occupation, trade or business on which the State
may impose reasonable restrictions in the interest of
the general public. Thus, there is no right to carry on
 Right to freedom

• The constitution also guarantees the right to life and personal liberty,
which in turn cites specific provisions in which these rights are applied
and enforced:
• Protection with respect to conviction for offences is guaranteed in the
right to life and personal liberty. According to Article 20, no one can be
awarded punishment which is more than what the law of the land
prescribes at that time. This legal axiom is based on the principle that
no criminal law can be made retrospective, that is, for an act to become
an offence, the essential condition is that it should have been an
offence legally at the time of committing it. The other principle
enshrined in this article is known as the principle of double jeopardy,
that is, no person can be convicted twice for the same offence, which
has been derived from Anglo Saxon law.
• Protection of life and personal liberty is also stated under right to life
and personal liberty. Article 21 declares that no citizen can be denied
his life and liberty except by law. This means that a person's life and
personal liberty can only be disputed if that person has committed a
crime. However, the right to life does not include the right to die, and
hence, suicide or an attempt thereof, is an offence. (Attempted suicide
being interpreted as a crime has seen many debates.
• In 2002, through the 86th Amendment Act, Article 21(A) was
incorporated. It made the right to primary education part of the right to
freedom, stating that the State would provide free and compulsory
education to children from six to fourteen years of age. Six years after
 Right to freedom

• Rights of a person arrested under ordinary circumstances is laid

down in the right to life and personal liberty. No one can be
arrested without being told the grounds for his arrest. If arrested
the person has the right to defend himself by a lawyer of his
choice. Also an arrested citizen has to be brought before the
nearest magistrate within 24 hours. The rights of a person arrested
under ordinary circumstances are not available to an enemy alien.
They are also not available to persons detained under the
Preventive Detention Act. Under preventive detention, the
government can imprison a person for a maximum of three
months. It means that if the government feels that a person being
at liberty can be a threat to the law and order or to the unity and
integrity of the nation, it can detain or arrest that person to
prevent him from doing this possible harm. After three months
such a case is brought before an advisory board for review.
• The constitution also imposes restrictions on these rights. The
government restricts these freedoms in the interest of the
independence, sovereignty and integrity of India. In the interest of
morality and public order, the government can also impose
restrictions. However, the right to life and personal liberty cannot
be suspended. The six freedoms are also automatically suspended
or have restrictions imposed on them during a state of emergency.
Right against exploitation

The right against exploitation, given in

Articles 23 and 24, provides for two
provisions, namely the abolition of
trafficking in human beings and Begar
(forced labor), and abolition of employment
of children below the age of 14 years in
dangerous jobs like factories and mines.
Child labour is considered a gross violation
of the spirit and provisions of the
constitution. Trafficking in humans for the
purpose of slave trade or prostitution is also
prohibited by law. An exception is made in
employment without payment for
compulsory services for public purposes.
Compulsory military conscription is covered
Right to freedom of religion

• Right to freedom of religion, covered in Articles 25, 26, 27 and 28,

provides religious freedom to all citizens of India. The objective of
this right is to sustain the principle of secularism in India.
According to the Constitution, all religions are equal before the
State and no religion shall be given preference over the other.
Citizens are free to preach, practice and propagate any religion of
their choice.
• Religious communities can set up charitable institutions of their
own. However, activities in such institutions which are not
religious are performed according to the laws laid down by the
government. Establishing a charitable institution can also be
restricted in the interest of public order, morality and health. No
person shall be compelled to pay taxes for the promotion of a
particular religion. A State run institution cannot impart education
that is pro-religion . Also, nothing in this article shall affect the
operation of any existing law or prevent the State from making
any further law regulating or restricting any economic, financial,
political or other secular activity which may be associated with
religious practice, or providing for social welfare and reform.
• The only limitation imposed on this fundamental right is that
nothing should be done to malign or incite violence among the
followers of other religion.
Cultural and educational rights
• As India is a country of many languages, religions, and cultures,
the Constitution provides special measures, in Articles 29 and 30,
to protect the rights of the minorities. Any community which has a
language and a script of its own has the right to conserve and
develop them. No citizen can be discriminated against for
admission in State or State aided institutions.
• All minorities, religious or linguistic, can set up their own
educational institutions in order to preserve and develop their own
culture. In granting aid to institutions, the State cannot
discriminate against any institution on the basis of the fact that it
is administered by a minority institution. But the right to
administer does not mean that the State can not interfere in case
of maladministration. In a precedent-setting judgment in 1980, the
Supreme Court held that "the State can certainly take regulatory
measures to promote the efficiency and excellence of educational
standards. It can also issue guidelines for ensuring the security of
the services of the teachers or other employees of the institution.
In another landmark judgment delivered on 31 October 2002, the
Supreme Court ruled that in case of aided minority institutions
offering professional courses, admission could only be through a
common entrance test conducted by State or a university. Even an
unaided minority institution ought not to ignore the merit of the
students for admission.
Right to constitutional remedies
Right to constitutional remedies under Art
32 empowers the citizens to move a court of
law in case of any denial of the fundamental
rights. For instance, in case of
imprisonment, the citizen can ask the court
to see if it is according to the provisions of
the law of the country. If the court finds that
it is not, the person will have to be freed.
This procedure of asking the courts to
preserve or safeguard the citizens'
fundamental rights can be done in various
ways. The courts can issue various kinds of
writs. These writs are habeas corpus,
mandamus, prohibition, quo warranto and
certiorari. When a national or state
emergency is declared, this right is
Right to property
a former fundamental right
• The Constitution originally provided for the right to property
under Articles 19 and 31. Article 19 guaranteed to all citizens
the right to acquire, hold and dispose off property. Article 31
provided that "no person shall be deprived of his property
save by authority of law." It also provided that compensation
would be paid to a person whose property has been taken for
public purposes.
• The provisions relating to the right to property were changed
a number of times. The 44th amendment act of 1978 deleted
the right to property from the list of Fundamental Rights. A
new article, Article 300-A, was added to the constitution
which provided that "no person shall be deprived of his
property save by authority of law". Thus if a legislature
makes a law depriving a person of his property, there would
be no obligation on the part of the State to pay anything as
compensation. The aggrieved person shall have no right to
move the court under Article 32. Thus, the right to property is
no longer a fundamental right, though it is still a
constitutional right. If the government appears to have acted
unfairly, the action can be challenged in a court of law by
citizens.
Critical analysis
• The Fundamental Rights have been criticised for many
reasons. Political groups have demanded that the right to
work, the right to economic assistance in case of
unemployment , old age, and similar rights be enshrined as
constitutional guarantees to address issues of poverty and
economic insecurity, though these provisions have been
enshrined in the Directive Principles of state policy. The
right to freedom and personal liberty has a number of
limiting clauses, and thus have been criticized for failing to
check the sanctioning of powers often deemed "excessive".
There is also the provision of preventive detention and
suspension of Fundamental Rights in times of Emergency.
The provisions of acts like the Maintenance of Internal
Security Act (MISA) and the National Security Act (NSA) are
a means of countering the fundamental rights, because
they sanction excessive powers .
• "Freedom of press" has not been included in the right to
freedom, which is necessary for formulating public opinion
and to make freedom of expression more legitimate.
Employment of child labour in hazardous job environments
has been reduced, but their employment even in non-
hazardous jobs, including their prevalent employment as
Amendments
• Changes in Fundamental Rights require a Constitution
a amendment which has to be passed by a special
majority of both houses of the Parliament. This means
that an amendment requires the approval of two-
thirds of the members present and voting. However,
the number of members voting should not be less
than the simple majority of the house — whether the
Lok Sabha or Rajya Sabha.
• The right to property was originally included as a
fundamental right. However, the 44th Amendment
passed in 1978, revised the status of property rights
by stating that "No person shall be deprived of his
property save by authority of law" to further the goals
of socialism.
• The right to education at elementary level has been
made one of the Fundamental Rights under right to
life and personal liberty by the 86th constitutional
amendment of 2002.
writ jurisdiction
Under the Indian Legal System jurisdiction to
issue 'prerogative writs' is given to Supreme
Court and High Courts of all Indian states. Law
relating to the writ jurisdiction is provided in the
Constitution of India. Supreme Court of India,
which is the apex court in the country, can
issue writ under Article 32 of the Constitution.
While for High Courts, which are the apex court
in any state, can issue writ under Article 226
and 227 of the Constitution of India. 'Writ' is
eminently designed by the makers of the
Constitution, and in the same way it is
developed very widely and efficiently by the
courts in India. Constitution of India broadly
provides for five kinds of 'prerogative writs',
namely, Habeas Corpus, Certiorari, Mandamus,
Quo Warranto and Prohibition. Basic details of
which are as follows:
5 types of Writs
• The writ of prohibition is issued by a higher court to a
lower court prohibiting it from taking up a case because it
falls outside the jurisdiction of the lower court. In doing so,
the higher court seeks a transfer of the case to itself
• The writ of habeas corpus means 'let us have the body'. It
is a writ issued to a detaining authority to produce the
detained person in court to know cause for detention. If
the detention is found to be illegal, the court issues an
order to set the person free.
• The writ of certiorari is one of the writs issued by the High
Court or the Supreme court to protect the Fundamental
rights of the citizens. It is issued to a lower court directing
it that the record of a case be sent up for review with all
the files, evidence and documents with an aim to overrule
the judgement of the lower court.
• The writ of mandamus is an order of a court of law issued
to a subordinate court or an officer of government or a
corporation or any other institution commanding the
performance of certain acts or duties.
• The writ of quo warranto is issued against a person who
claims or usurps a public office. Through this writ the court
inquires 'by what authority' the person supports his or her