Fundamental Rights

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#1 What are  Fundamental Rights

Referred to as the “Magna Carta” of India, Fundamental Rights have been mentioned in the Part III of the constitution from Article 12 to 35.

These are basic human rights , guaranteed and protected by the constitution. They are justiciable in nature. Thus defended and guaranteed by the Supreme Court.
1. Aggrieved person can directly move the SC. Not necessarily by way of appeal.
2. It should however be noted that Fundamental rights are not absolute in nature but qualified. These are  subjected to “reasonable restrictions”.

They exist to protect the liberty and freedom of people and to promote the idea of political democracy. These are claims of citizens against the state. They act as limitations on the tyranny of executive and arbitrary laws of the legislature.

#2 List of Fundamental Rights in Indian Constitution

There are six fundamental rights recognised by the Indian constitution:

1. Right to Equality (Article 14-18)
2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)

Originally, there were 7 Fundamental Rights enshrined in the constitution. However, Right to Property was deleted as a fundamental right through the 44th Amendment Act, 1978. It was made a legal right (Article 300A).

#3 Availability of Fundamental Rights to Citizens and Non-Citizens

Fundamental Rights available to only citizens and not foreigners: 1. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15). 2. Equality of opportunity in matters of public employment (Article 16). 3. Six basic freedoms subject to reasonable restrictions (Article 19). 4. Protection of language, script and culture of minorities (Article 29). 5. Right of minorities to establish and administer educational institutions (Article 30).

Fundamental Rights available to both Citizens and Non-Citizens: 1. Equality before law and equal protection of laws (Article 14). 2. Protection in respect of conviction for offences (Article 20). 3. Protection of life and personal liberty (Article 21). 4. Right to elementary education (Article 21A). 5. Protection against arrest and detention in certain cases (Article 22). 6. Prohibition of traffic in human beings and forced labour (Article 23). 7.Prohibition of employment of children in factories etc. (Article 24). 8. Freedom of conscience and free profession, practice and propagation of religion (Article 25). 9. Freedom to manage religious affairs (Article 26). 10. Freedom from payment of taxes for promotion of any religion (Article 27). 11. Freedom from attending religious instruction or worship in certain educational institutions (Article 28).

#4 Provisions enshrined in important articles of the Fundamental Rights

Article 12 defines the term “State” for the purpose of Part III of the constitution. State includes the following:

• Executive and the legislative organs of Union government, state governments, Panchayats, Municipalities, district boards etc.
• All other authorities, either statutory or non-statutory in nature.
• The SC has included even private bodies or agencies working as an instrument of the State to fall within the meaning of the term “State”.

The term State has been defined in a wider sense to include all agencies of the government.

Article 13 provides the Supreme Court with the power of Judicial Review.

• All ‘laws’ inconsistent with or in violation of any of the fundamental right shall be void.
• The term “laws” in Article 13 also carries a wider connotation to include all legislations (permanent or temporary), Statutory instruments, orders, bye-laws, regulations or notifications.
• SC in the Kesavananda Bharati case held that even Constitutional amendments fall within the purview of “laws” under Article 13 and thus subject to Judicial Review.

Similar powers are vested in the High Courts under Article 226.

RIGHT TO EQUALITY

Article 14 –The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, on grounds of religion, race, caste, sex or place of birth

• Equality before Law – British origin;
  • It is a ‘negative concept’; “no person is above the law”.
  • Absence of any special privileges – Every person irrespective of their social status is subject to the jurisdiction of courts.
  • The term “Equality before Law is an element of the concept of “Rule of Law”.
• Equal Protection of Law – Borrowed from American constitution;
  • It is a ‘positive concept’; Equal treatment under equal circumstances.
  • There can be discrimination between the groups but not within the groups. Aims of a Welfare State require positive discrimination in favor of less privileged.

The word ‘any person’ denoted that this right is conferred to all persons whether citizens or foreigners.

The concept of Rule of Law lays down that the law is supreme and hence the government must act according to law and within the limits of the law. It is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. The Supreme Court held that Rule of Law as embodied in Article 14 is a ‘basic feature’ of the constitution.

 

Article 15 – Prohibition of Discrimination only on grounds of religion, race, caste, sex or Place of birth.

• The word ‘only’ denoted that discrimination on other grounds are not prohibited.
• Article 15(1) – No discrimination on 5 grounds only by State; only for citizens.
• Article 15(2) – No discrimination on 5 grounds (or) combination; by both State and Private Individuals. Example: Access to Public places like parks, roads, wells etc.
• Four exceptions to non-discrimination are enabling provisions (positive discriminations) as derived under Equal Protection of Law (Article 14).
  • Article 15(3) – Enabling provisions for women and children. E.g. Reservation for women in 73rd and 74th Constitutional amendment act; Odd Even policy of Delhi; Juvenile Justice (Care and Protection of Children) Act etc.
  • Article 15(4) – Permits State to make special provisions for socially and educationally backward classes, SC/ST; Added by 1^st Constitutional Amendment Act, 1951.
  • Article 15(5) – Reservation in educational institution (Govt; Govt aided and unaided); Added by 93^rd Constitutional Amendment Act; Central Educational Institution (Reservation in Admission) Act, 2006 passed; Creamy Layer upheld by Ashok Kumar Thakur case, (2008).
  • Article 15(6) – Added by 103^rd Constitutional Amendment Act; EWS reservation (10%).

Article 16 – Equal opportunity in Matters of Public Employment.

• No citizen can be discriminated against in matters of public employment on the grounds of only religion, race, caste, sex, descent, place of birth or residence.
• Exception:
  • Parliament can provide for Sons of Soil Doctrine In certain subordinate services. E.g. Public employment (Requirement as to Residence), Act 1957.
  • A law can provide for incumbent of offices of religious or denominational institutions or governing bodies to belong to a particular religion.
• Article 16(4) – Provides for reservation to OBC; SC/ST;
  • Mandel Commission (27%) for OBC;
  • Indra Sawhney Case (1992) – No Reservation in Promotion; 50% cap; Creamy Layer to be excluded in OBC; No test of backwardness for SC/ST.
• Article 16(4A) – 77^th Constitutional Amendment Act: Reservation in Promotion and Consequential Seniority.
• Article 16(4B) – 81^st Constitutional Amendment Act (2000); Carry forward policy.
• Article 16(6) – 103^rd Constitutional Amendment Act; EWS reservation.

 

 

Article 17 – Abolition of Untouchability

• ‘Untouchability’ is abolished and its practice in all forms is forbidden.
• The constitution does not prescribe any punishment under this article. Therefore, The Parliament enacted the Untouchability (offences) Act, 1955, which has subsequently been amended and renamed as Protection of Civil Rights Act, 1955.
• The term ‘untouchability’ has not been defined in either the constitution or the act. According to the Supreme Court – ‘untouchability’ should not be understood in its literal or grammatical sense. It has to be understood as the ‘practice as it had developed historically’.
• Rights of Article 17 are available against private individuals. It is constitutional obligation of the State to ensure that the rights are not violated.

Article 18 – Abolition of Titles

• Prohibits State from conferring titles and prohibits citizens of India from accepting titles from any foreign State.
• Also prohibits foreign nationals under the employment of the State to receive any titles from any foreign state without the consent of the President.
• Article 18 does not prescribe any punishment.
• Exceptions –
  • Military and Academy; to avoid social inequality in the Society.
  • Awards like Bharat Ratna and Padma Bhushan are not titles. (Balaji Raghvan vs UoI case).
  • Indian citizens free to receive awards but not titles from foreign state.

RIGHT TO FREEDOM

Article 19 – guarantees the following six rights:

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

• Available to citizen only against state and not private individuals; qualified in nature;
• Reasonable restriction 19(2) – Sovereignty and integrity of India; Security of the state, friendly relations with foreign state; public order; decency or morality, contempt of court, defamation; incitement to an offence.
• Subject to test of reasonability by courts.
• Freedom of Press implied under Article 19(1)(a) [Romesh Thappar case (1950)]

1.Defamation [Section 499 IPC] – Subramanya Swami vs UoI case. Supreme Court upheld validity of criminal defamation. Right to reputation under Article 21 to be balanced with right provided under Article 19(1)(a) Ensuring constitutional fraternity 2.Sedition [Section 124A IPC] – Supreme Court upheld in Kedarnath (1962) and Balwant singh (1995) case. Clear and immediate incitement of violence; mere discussion and advocacy not to be considered seditious. 3.Censorship (Indian Cinematographic Act, 1952) 4. Hate Speech – Section 153A (Affecting Class and communal Harmony)

 

Article 19(1)(b) – Right to assemble peacefully without arms

• Can be exercised only on public land
• Subject to reasonable restrictions on grounds of sovereignty and integrity of India, and public order including maintenance of traffic in an area. (Article 19(3)).
• Section 144 (CrPC) – magistrate can restrain assembly.
• Section 141 (IPC) – If imposed, makes assembly of 5 or more persons unlawful.

 

Article 19(1)(c) – Right to form associations

• All citizens have right to form associations or unions or co-operative societies (Included through 97^th constitutional amendment, 2011).
• Subject to reasonable restrictions on grounds of sovereignty and integrity of India, public order and morality.
• However, right to obtain recognition of the association is not a fundamental right.
• In view of Supreme Court, Right to strike is a statutory right (controlled by industrial laws) and not a fundamental right.

 

Article 19(1)(d) – Right to move freely throughout the territory of India

• Subject to reasonable restrictions on two grounds namely – interests of general public and the protection of interests of any scheduled tribe. Example: Areas with inner line permit.
• Right to travel within India – through Article 19; Right to travel abroad – though Article 21.

 

Article 19(1)(e) – Right to reside & settle in any part of territory of India

• Subject to reasonable restrictions on two grounds, namely – interests of general public and the protection of interests of any scheduled tribe.
• SC has held that certain areas can be banned for certain kind of persons like prostitutes and habitual offenders.

 

Article 19(1)(f) – Right to practice any profession or to carry on any occupation, trade or business

• State can prescribe technical qualification; Reasonable restriction (Article 19(b)) on grounds of Public safety, Health, Morality and General welfare of the people.
• The right does not include right to carry out profession that is immoral. Example: human trafficking.

 

Right to Internet Access: Apex court in Anuradha Bhasin vs. Union of India case held that freedom to practice any profession or carry on any trade, business or occupation over themedium of internet enjoys constitutional protection and therefore is indispensable to Article 19.

Also in Ghulam Nabi Azad case , supreme court held  the opinion that continuous internet shutdown is violative of fundamental right of freedom of speech and expression.

 

Article 20 – Protection in respect of conviction to offences

Protection against arbitrary and excessive punishment for offences is available to citizen; foreigner as well as legal entities. It contains three provisions in that direction:

• No Ex-Post Facto Legislation – No person shall be (a) convicted of any offense except for violation of a law in force at the time of the commission of the act, nor (b) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act. Protection under this provision is applicable only for criminal laws and not civil laws.
• No double jeopardy – No person can be punished for same offence twice. Protection under this provision is available only in court proceedings, tribunals and not before departmental authorities.
• No self-incrimination – No person shall be compelled to witness against himself. Protection under this provision extends only to criminal proceedings and not civil proceedings.

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.

• “Procedure established by Law” –
  • Narrow interpretation in AK Gopalan case (1950) – life and liberty can be defined and limited by procedure established by law.
  • Broad interpretation in Menaka Gandhi case (1978) – law should be reasonable, fair and just. Thus interpreted ‘Due process of Law’ as inherent in Article 21. Due process of law is an American concept by origin.
• Rights Implied under article 21
  • Right to Privacy (Justice Puttaswamy case 2017)
  • Passive Euthanasia & Right to Execute a living will (NGO Common Cause case 2018).
  • Right to marry a person of one’s choice (Hadiya case 2018).
  • Right to Reputation (Subramanian Swamy Case 2016).
  • Right to Primary Education (Unnikrishnan Case 1993).
• Further, Right to Livelihood; Right to Rehabilitation of Bonded Labor; Right to Speedy Justice; Right to clean surrounding; Right to travel Abroad; Right to sleep; etc. have been held to right implied under article 21 of the constitution by Supreme Court.

The Supreme Court of India has described article 21 as the ‘heart of fundamental rights’.

Article 21A – Right to Education

• Makes free and compulsory education a Fundamental Right for all children in the age group of 6-14 years.
• Added through 86^th Constitutional Amendment Act, 2002.
• Prior to 86^th constitutional amendment act, provision of providing free and compulsory education was a Directive principle under Article 45.

Article 22 – Protection against Arrest and Detention in Certain Cases

• Article 22(1) and Article 22(2) – Punitive Detention: to punish a person after trial and conviction. Available safeguards are:
  • Right to be Informed, Right to consult and be defended by a legal practitioner.
  • Right to be produced before a magistrate within 24 hours and Right to be released unless the magistrate authorizes.
• Article 22(4) to Article 22(7) – Preventives Detention: Detention done in Anticipation; Precautionary in nature.
  • Detention cannot exceed 3 months unless approved by an advisory board.
  • Right to be informed about grounds of detention.
• Legislation on Preventive detention –
  • For reason connected with defense, foreign affairs and security of India – Parliament has exclusive authority to make laws.
  • For reasons connected to security of a state, maintenance of public order, maintenance of supplies and services essential to the community – concurrent powers to both Parliament and state legislatures.

RIGHT AGAINST EXPLOITATION

Article 23 – Prohibition of Traffic in Human being & Forced labour.

• Article 23(1) – Prohibits Traffic in Human beings, beggar (forced labour) and other forms of forced Labour. Example: Immoral Traffic Prevention Act, 1986 Bonded Labour Abolition Act, 1976 etc.
• Article 23(2) – State can impose Compulsory Service; No Discrimination on ground only of religion, race, caste or class or any of them.

Article 24 – Prohibits Employment of children in Factories etc.

• Prohibition of employment of children below 14 years of age in hazardous jobs.
• Supreme Court in M.C. Mehta v State of Tamil Nadu case – State authorities should protect economic, social and humanitarian rights of children.

RIGHT TO FREEDOM OF RELIGION

Article 25 – Freedom of Conscience, Profession, Practice and Propagation of Religion

• Covers both, religious beliefs as well as religious rituals.
• Reasonable restrictions – subject to public order, morality, health and other provisions relating to fundamental rights.

Article 26 – Freedom to manage Religious Affairs.

• Protects “collective’ freedom of religion
• Right to establish and maintain religious institutions.
• Right to manage own affairs in matter is religion
• Right to own, acquire and administer movable and immovable property.
• Reasonable restrictions – subject to public order, morality, health.

Article 27 – Freedom from Payment of taxes for promotion of religion.

• No person shall be compelled to pay any taxes for religious purposes.
• Prohibits the State from being biased towards a particular religion.
• State can however, charge Fees for secular administration or special services.

Article 28 – Freedom from attending Religious Instruction.

• Divides educational institutions into four categories:
  • Wholly maintained by State – Religious instruction is not permitted
  • Recognized by State – Religious instructions permitted on voluntary basis.
  • Receive aids by the State – Religious instructions permitted on voluntary basis.
  • Administered by State but established under a religious endowment – No restrictions on religious instructions.

CULTURAL AND EDUCATIONAL RIGHTS

Article 29 – Protection of Interest of Minorities

• Any ‘section of citizens’ having a distinct language, script or culture have a right to protect the same.
• According to Supreme Court, it is not restricted to religious and cultural minorities but includes all ‘sections of citizens’.
• No citizen shall be denied admission into educational institution fully or partially funded by the State on the grounds only of religion, race, caste or language.

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

• All minorities shall have right to establish and administer educational institution of their choice.
• The term ‘minority’ is not defined in the constitution.

#5 Right to Constitutional Remedies (Article 32-35)

Article 32 – Provides institutional framework for the enforcement of Fundamental Rights. Thus makes Right to get fundamental rights protected, itself a Fundamental Right.

• B.R. Ambedkar called it “the heart and soul of the Constitution”.
• Empowers the Supreme Court to issue writs for enforcement of Fundamental Rights.
• The concept of writs is taken from the UK.
• The five types of writs are:
  • Habeas Corpus – “To have a body”; Courts to determine legality of Detention; against state and private person; locus standi doesn’t apply.
  • Mandamus – “We Command”; Direct public Authority to do some work, Statutory in nature and not discretionary, only against the state (except President an Governors) and not private individuals; locus standi does not apply; Doctrine of Continuing Mandamus
  • Prohibition – Literally means to forbid; issued against interiors Court or Semi-Judicial body, directs judicial body, direct inactivity (Mandamus Directs Activity); before trial of the case; not against administrative authority having Judicial functions; Locus standi applies; Preventive in nature.
  • Certiorari – To be certified or to be informed; issued by higher Judiciary to lower Judiciary on – Lack of Jurisdiction, Excess of Jurisdiction and Error of law; It is both preventive and curative in nature; locus standi
  • Quo-warranto – By what authority or warrant? Enquire in to legality of claim of a person to public office; office of the substantial importance and not ministerial; locus standi does not apply.
• This makes the Supreme Court as the defender and guarantor of the fundamental rights of the citizens.
• Jurisdiction of Supreme Court – original but not exclusive (Shared by High Courts under Article 226).
• In the Chandra Kumar case (1997), the Supreme Court ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution.
• Article 32 cannot simply be invoked to check the constitutionality of legislation or order unless it infringes any fundamental rights.
• FRs can be suspended during a National emergency except Article 20 and 21. Further, Article 19 can be suspended only in case of ‘war or external aggression’ [External emergency] and not on the ground of ‘armed rebellion’ [Internal emergency].

The scope and application of Fundamental Rights are limited to save certain legislations:

• Article 31A – Saving of laws providing for the acquisition of estates etc.
• Article 31B – Validation of legislations in the 9^th Schedule. [IR Coelho Case 2007];
  • SC: subject to judicial review on grounds of ‘Basic Structure Doctrine’.
• Article 31C – Saving of laws giving effect to certain directive principles.
  • Scope of Article 31C enlarged to entire DPSP by 42nd CAA;
  • Minerva Mills case struck down the enlarged scope, gave – Doctrine of Harmonious Balance.

Article 33 – Empowers Parliament to restrict or abrogate fundamental rights of the members of the security services.

• Power conferred only on Parliament and not on state legislatures.
• Allows Court Martials to be excluded from writ jurisdiction of SC and High Courts.

Article 34 – Provides for restrictions on fundamental rights while Martial Law is in force in any area.

• The term ‘Martial Law’ has not been defined in the constitution.
• SC has held that declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

Article 35 – Power to make laws giving effect to certain fundamental rights to be vested with Parliament and not in the state legislatures.

• Parliament and not state legislature to make laws with regard to Article 16(3); Article 32(3); Article 33 and Article 34.

#6 Other Constitutional Rights

OTHER CONSTITUTIONAL RIGHTS

Right to Property – originally, provided through Article 19(1)(f) and Article 31. However, the 44^th Amendment Act of 1978 repealed Article 19(1)(f) and Article 31 from Part III.

• Article 300A inserted in Part XII under the heading ‘Right to Property’. Thus it is no longer a fundamental right, but a constitutional right.

Right to Vote – Article 326 provides that elections to the Lok Sabha and Legislative Assembly shall be on the basis of adult franchise.

Article 265 – No tax shall be levied or collected except by authority of Law.

Article 301 – Trade, commerce throughout the territory of India shall be free.