A to Z Fundamental Rights of Indian Constitution

Fundamental Rights UPSC

Fundamental rights(Articles 12-35) are a very important topic in the polity section of the UPSC exam. In fact, Fundamental Rights are the soul of the UPSC CSE preparation. Apart from the importance of Fundamental Rights for UPSC prelims, they are particularly mentioned in UPSC Mains’ GS Paper 2 Syllabus.

How the Fundamental Rights have been classified?

The fundamental rights under the Indian constitution can be classified under the following six groups:

1. Right to equality (Arts. 14-18)
2. Right to freedom (Arts. 19-22)
3. Right against exploitation (Arts. 23-24)
4. Right to freedom of religion (Arts. 25-28)
5. Cultural and educational rights (Arts. 29-30)
6. Right to constitutional remedies (Arts. 32-35)

Are Fundamental rights against the state or individual or both?

• Fundamental rights are available to the state and not private individuals.
• The conflict between individuals and states is as old as our history. The individuals need personal liberty and the state has the power to decide those liberties.
• Thus, if the state has absolute power to cut down the liberties of an individual, it would be tyranny.
• Thus, individuals need constitutional protection against the state.
• The rights that are given to the citizens by way of fundamental rights are a guarantee against state action as distinguished from violation by the ordinary law of the land.
• Thus, Fundamental rights are against the state for the protection of individuals.

Are all fundamental rights self-executory?

• Please note that there are certain rights in the Indian constitution that don’t need any legislation to make them enforceable. For example, there is no need to enact separate legislation to make the Right to Equality enforceable. These are called self-executory.
• At the same time, there are certain rights that are imperfect in just being inscribed into the constitution and need further legislation to make them enforceable. Such rights are Art. 17 (untouchables) Article 21A (right to free & compulsory education); Article 23 (traffic in human beings; and Article 24 (child labor).

Legal Rights versus Fundamental Rights

• The legal rights are protected by an ordinary law, but they can be altered or taken away by the legislature by changing that law.
• Fundamental Rights are protected and Guaranteed by the Constitution and they cannot be taken away by an ordinary law enacted by the legislature.
• If a legal right of a person is violated, he can move to an ordinary court, but if a fundamental right is violated the Constitution provides that the affected person may move to the High Court or Supreme Court.
• Here we should note that the Right to Property was a fundamental right before 1978. The Constitution(Forty-fourth Amendment) Act, 1978, took away the Right to property (Article 31) as a fundamental Right and was made a legal right under new Article 300 A.

Suspension of Fundamental Rights

• The constitution of India provides for the suspension of fundamental rights in certain circumstances. Article 358 provides that when the proclamation of emergency is made by the president under Article 352, the freedoms guaranteed by Article 19 (Freedom of Speech, etc.) are automatically suspended for the period of emergency.
• Then, Article 33 empowers parliament to modify the application of fundamental rights to the armed forces or forces charged with the maintenance of public order, etc.
• In the interest of discharge of duties and maintenance of discipline, under art. 34, parliament may by law indemnify any person for anything done in contravention of fundamental rights for maintenance of order during the operation of martial law.

Article 12: What is a State?

Article 12 defines the “state”. The state includes the Government and Parliament of India 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. Please note that this definition of a state is not exhaustive but is inclusive. This means that apart from those organs or bodies that have been enumerated, others may also be covered by the expression state. Thus, Article 12 is an interpretative article and has been interpreted by the Supreme Court at various times in various ways.

So, the State is: Statutory and non-statutory bodies that get financial resources from the government, have deep pervasive control of government, and with functional characters such as ICAR, CSIR, ONGC, IDBI, Electricity Boards, NAFED, Delhi Transport Corporation, etc.

Article 13: All laws should conform to Fundamental Rights

• Article 13 makes all laws in force in the country immediately before the commencement of the constitution void so far they are inconsistent with the provisions of part III.
• This means that if there was a law in action before the commencement of the Constitution that in any way did not conform to the fundamental rights, the law would stand void.
• Then, the same Article makes clear that in the future, the State shall not make any law that takes away the Fundamental Rights given by Part III. The law here does not only include the legislation but also an ordinance, order, bye-law, rule, regulation, and notification.
• This means that Parliament cannot make any law that takes away the fundamental rights of the individuals. This also means that Article 13 provides for the judicial review of all legislations in India, past as well as future.

Right to Equality(Article 14-18)

Before knowing about the right to equality, aspirants should know the types of equality to get an idea of what it is. It is also mentioned in our Preamble. The types of  equality are:

• Natural
• Social
• Civil
• Political
• Economic
• Legal

Equality before the law (Article 14)

Article 14 treats all people the same in the eyes of the law.

• This provision states that all citizens will be treated equally before the law.
• The law of the country protects everybody equally.
• Under the same circumstances, the law will treat people in the same manner.

Prohibition of discrimination (Article 15)

This article prohibits discrimination in any manner.

• No citizen shall, on grounds only of race, religion, caste, place of birth, sex, or any of them, be subject to any liability, disability, restriction, or condition with respect to:
  • Access to public places
  • Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant for the general public
  • The article also mentions that special provisions can be made for women, children, and the backward classes notwithstanding this article.

Equality of opportunity in matters of public employment (Article 16)

Article 16 provides equal employment opportunities in State service for all citizens.  

• No citizen shall be discriminated against in matters of public employment or appointment on the grounds of race, religion, caste, sex, place of birth, descent, or residence.
• Exceptions to this can be made for providing special provisions for the backward classes.

Abolition of untouchability (Article 17)

Article 17 prohibits the practice of untouchability.

• Untouchability is abolished in all forms.
• Any disability arising out of untouchability is made an offense.

Abolition of titles (Article 18)

Article 18 abolishes titles.

• The State shall not confer any titles except those which are academic or military titles.
• The article also prohibits citizens of India from accepting any titles from a foreign State.
• The article abolishes the titles that were awarded by the British such as Rai Bahadur, Khan Bahadur, etc.
• Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna, and military honours like Ashok Chakra, and Param Vir Chakra do not belong to this category.

Right to Freedom (Article 19-22)

Article 19

Article 19 guarantees six freedoms. They are:

Freedom of speech and expression: The State guarantees freedom of speech and expression to every person in India. However, the State can impose restrictions on the freedom of speech and expression in the interests of the integrity, security, and sovereignty of the country, friendly relations with foreign nations, for public order, with respect to defamation, incitement to offense, or contempt of court.
Freedom to assemble: The State guarantees every person the freedom to assemble peacefully without arms. However, as above, reasonable restrictions can be imposed in the interests of the sovereignty and integrity of the country and public order.
Freedom to form associations/unions/cooperative societies: Again, the State can impose restrictions in the interests of the integrity, security, and sovereignty of the country, friendly relations with foreign nations, for public order, with respect to defamation, incitement to offense, or contempt of court. This freedom gives workers the right to form trade unions, which is thus a fundamental right.
The Police Forces (Restriction of Rights) Act, of 1966 prohibits police personnel from forming trade unions.
The Constitution also allows the Parliament to pass a law restricting the right to form political associations with members of the armed forces, intelligence bureaus, and persons employed with telecommunication systems.
Freedom to move freely: A citizen of India can move freely throughout the territory of India. But this right can also be restricted on the grounds of security, public order, or for protecting the interests of the Schedule Tribes.
Freedom of residence: Citizens of India have the right to reside in any part of the country. Although restrictions can be imposed on the grounds of security, public order, or for protecting the interests of the Scheduled Tribes.
Freedom of profession: All citizens have the right to carry on any trade or profession/occupation, provided the trade or occupation is not illegal or immoral. Also, the law does not prevent the State from making laws related to technical or professional qualifications required for practicing the occupation or trade.

Article 20

Article 20 deals with the protection of citizens in respect of conviction for offenses. This provides for three types of protection of the individual against the State.

Retrospective criminal legislation: This is also known as ex-post-facto criminal legislation. Under this, a person cannot be convicted for an act that was committed at a time when the act had not been declared by law as an offense. This means that criminal legislation cannot be given a retrospective effect. This immunity cannot be used against the provision of preventive detention and also does not cover the trial. The law also provides that a person cannot be subject to a punishment greater than what is prescribed by law for the offense committed.
Double jeopardy: This indicates that a person cannot be convicted for the same offense more than once.
Prohibition against self-incrimination: This implies that no person accused of an offense shall be compelled by the State to bear witness against himself.

Article 21

• Article 21 states that no person shall be deprived of his life and personal liberty by the State except as per the procedure established by law. This article has a wide scope and its interpretation has undergone many changes over the decades.
• The Supreme Court has interpreted the right to life as the right to a dignified life.
• This is the most important right in one sense, because, without this right to life, all other fundamental rights would be meaningless.
• It is this article that differentiates between a police state and a constitutional state.

Article 21(A)

This article was introduced by the 86th Constitutional Amendment in 2002. It provides that the State shall provide free and compulsory education to all children between the ages of 6 and 14.

Article 22

• Article 22 deals with the protection against arrest and detention in certain cases.
• This article is applicable to both citizens and non-citizens.
• This provision extends certain procedural safeguards for individuals in case of an arrest.
• It comes into the picture after a person has been arrested. It is not a fundamental right against detention and arrest.
• The idea behind this right is to prevent arbitrary arrests and detention.

The article provides the following safeguards:

Article 22(1) – Any person who is in custody has to be informed as to why he has been arrested. Further, he cannot be denied the right to consult an advocate.

Article 22(2) – The arrested individual should be produced before a judicial magistrate within 24 hours of his arrest.

Article 22(3) – No individual who has been arrested can be kept in custody for more than the period determined by the judicial magistrate.

These safeguards are, however, not applicable to

• Enemy aliens
• People arrested under preventive detention laws

What is Preventive Detention?

There are two types of detention:

• Punitive
• Preventive

Punitive detention is detention after a trial. Preventive detention is detention without trial. The idea behind this is to prevent an individual from committing a crime. This means that persons can be detained on grounds of suspicion. The rights of people arrested in this manner are governed by the preventive detention laws.

Right against Exploitation(Art. 23-24)

There are two articles of the Constitution that guarantee the right against exploitation. They are described below:

Article 23 – Prohibition of traffic in human beings and forced labor

Article 23(1): Traffic in human beings and begar and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offense punishable in accordance with the law.

Article 23(2): Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste class or any of them.

(Under Article 35 of the Constitution, the Parliament is authorized to enact laws to punish acts prohibited by Article 23.)

Article 24 – Prohibition of employment of children in factories, etc.

• Article 24 says that “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”
• This Article forbids the employment of children below the age of 14 in any hazardous industry or factories or mines, without exception.
• However, the employment of children in non-hazardous work is allowed.
• Laws that were passed in pursuance of Article 24 in India.
  • The Factories Act, 1948: This was the first act passed after independence to set a minimum age limit for the employment of children in factories. The Act set a minimum age of 14 years. In 1954, this Act was amended to provide that children below the age of 17 could not be employed at night.
  • The Mines Act of 1952: This Act prohibits the employment of people under the age of 18 years in mines.
  • The Child Labour (Prohibition and Regulation) Act, 1986: This was a landmark law enacted to curb the menace of child labor prevalent in India. It described where and how children could be employed and where and how this was forbidden. This Act designates a child as a person who has not completed his/her 14th year of age. The 1986 Act prohibits the employment of children in 13 occupations and 57 processes.
  • Child Labour (Prohibition & Regulation) Amendment Act, 2016: This Act completely forbids the employment of children below 14 years of age. It also bans the employment of people between the ages of 14 and 18 in hazardous occupations and processes. Punishments to violators of this law were made stricter by this amendment act. This Act allows children to be employed in certain family occupations and also as artists.
  • Child Labour (Prohibition and Regulation) Amendment Rules, 2017: The government notified the above Rules in 2017 in order to provide a broad and specific framework for the prevention, prohibition, rescue, and rehabilitation of child and adolescent workers. The Rules clarified issues concerning the employment of family enterprises and also provided safeguards for artists in that the working hours and conditions are specified.

Right to Freedom of Religion(Art. 25-28)

The Constitution of India guarantees the right to freedom of religion to not only individuals but also religious groups in India. This is enshrined in Articles 25 to 28.

Article 25 – (Freedom of conscience and free profession, practice and propagation of religion)

• Article 25 guarantees the freedom of conscience, and the freedom to profess, practice, and propagate religion to all citizens.
• The above-mentioned freedoms are subject to public order, health, and morality.
• This article also gives a provision that the State can make laws:
  • That regulates and restricts any financial, economic, political, or other secular activity associated with any religious practice.
  • That provides for the social welfare and reform or opening up of Hindu religious institutions of a public character to all sections and classes of Hindus. Under this provision, Hindus are construed as including the people professing the Sikh, Jaina or Buddhist religions and Hindu institutions shall also be construed accordingly.
  • People of the Sikh faith wearing & carrying the kirpan shall be considered included in the profession of the Sikh religion.

Article 26 – (Freedom to manage religious affairs)

• This Article provides that every religious denomination has the following rights, subject to morality, health, and public order.
  • The right to form and maintain institutions for religious and charitable intents.
  • The right to manage its own affairs in the matter of religion.
  • The right to acquire immovable and movable property.
  • The right to administer such property according to the law.

Article 27 – (Freedom as to payment of taxes for promotion of any particular religion)

• According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are directly used for the promotion and/or maintenance of any particular religion/religious denomination.

Article 28 – (Freedom as to attendance at religious instruction or religious worship in certain educational institutions)

• This article permits educational institutions that are maintained by religious groups to disseminate religious instruction.
• This provides that no religious instruction shall be provided in State-run educational institutions.
• Educational institutions administered by the State but that were established under any endowment or trust which requires that religious instruction be imparted in such institutions are exempt from the above clause (that no religious instruction shall be provided).
• Any person who attends any educational institution recognized by the State or receiving State aid shall not be required to participate in any religious instruction that may be imparted in such institution, or also attend any religious worship in such institutions unless he/she has given consent for the same. In the case of minors, the guardians should have given consent for the same.

Cultural and Educational Rights(Art. 29-30)

• Articles 29 and 30 deal with the cultural and educational rights of Indian citizens.
• This Fundamental Rights intends to preserve the culture of all minority groups in India.
• Indian society is a composite heterogeneous one and its diversity is one of its strengths.
• The Constitution guarantees these rights to minorities so that the diversity of this country is preserved and provides avenues for all groups including marginalized ones to protect, preserve and propagate their culture.

Article 29 – (Protection of Interests of Minorities)

• This article is intended to protect the interests of minority groups.
• Article 29(1): This provides all citizen groups that reside in India having a distinct culture, language, and script, the right to conserve their culture and language. This right is an absolute right and there are no ‘reasonable restrictions’ in the interest of the general public here.
• Article 29(2): The State shall not deny admission into educational institutes maintained by it or those that receive aid from it to any person on the basis of race, religion, caste, language, etc. This right is given to individuals and not any community.

Article 30 – (Right of Minorities to Establish and Administer Educational Institutions)

• This right is given to minorities to form and govern their own educational institutions. Article 30 is also called the “Charter of Education Rights”.
• Article 30(1): All religious and linguistic minorities have the right to establish and administer educational institutions of their choice.
• Article 30(2): The State should not, when 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.

Also Read:

Fundamental Rights (Article 12-32) | Cultural and Educational Rights (Articles 29 – 30)

What is a Writ?

Writs are written orders issued by the Supreme Court of India to provide constitutional remedies in order to protect the fundamental rights of citizens from a violation.

Facts about writs in India:

• Article 32 also empowers Parliament to authorize any other court to issue these writs
• Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs
• Article 226 empowers all the high courts of India to issue the writs
• Writs of India are borrowed from English law where they are known as ‘Prerogative writs’

What is a Writ Petition?

• A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower court’s decision. Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court, and to the High Courts of Judicature of all Indian states.
• Parts of the law relating to writs are set forth in the Constitution of India.

Type of Writs

The Constitution empowers the Supreme Court and High Courts to issue orders or writs.

The types of writs are:

Habeas Corpus

Habeas Corpus is a writ that is enforced in order to protect the fundamental right to liberty of an individual against unlawful detention. This writ commands a public official to deliver a detained person in front of the court and provide valid reasons for the detention. However, this writ cannot be issued in case the proceeding is for contempt of a legislature or a court.

Certiorari

The writ of certiorari is issued to a lower court directing the transfer of a case for review, usually with the intention of overruling the judgment of the lower court. The Supreme Court issues the writ of Certiorari in case the decision passed by the lower court is challenged by the party. It is issued in case the higher court finds it a matter of overjurisdiction or lack of jurisdiction. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.

Prohibition

Prohibition is a writ issued by a higher court to a lower court to enforce inactivity in the jurisdiction. It happens only in case the higher court is of the discretion that the case falls outside the jurisdiction of the lower court. Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.

Mandamus

The writ of mandamus is issued to a subordinate court, an officer of the government, or a corporation or other institution commanding the performance of certain acts or duties. Unlike Habeas Corpus, Mandamus cannot be issued against a private individual. The writ of mandamus can be used to order the completion of a task or in other cases, it may require an activity to be ceased.

Quo-Warranto

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 claim. Through this writ, the court enquires into the legality of a claim of a person to a public office. This writ prevents the illegal assumption of a public office by an individual.

Also Read:

Fundamental Rights (Article 12-32) | Right to Constitutional Remedies (Article 32)

Suspension of Fundamental Rights

• Fundamental rights can be suspended in the case of National Emergency as mentioned under article 352.
• The six fundamental rights under Article 19 are automatically suspended in case a national Emergency is imposed on grounds of war or external aggression which is stated under Article 358.
• Article 359 has a clause for suspension of other rights. In that case, a separate notification has to be issued by the President.
• The rights mentioned under Articles 20 and 21 can never be suspended.
• Constitutional emergencies and financial emergencies cannot affect the Fundamental Rights

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