Fundamental rights

Fundamental rights

 Fundamental rights are the basic human rights enshrined in the Constitution of India which are
guaranteed to all citizens. They are applied without discrimination on the basis of race, religion,
gender, etc. Significantly, fundamental rights are enforceable by the courts, subject to certain
conditions.
 Why are they called Fundamental Rights?
 These rights are called fundamental rights because of two reasons:
 They are enshrined in the Constitution which guarantees them
 They are justiciable (enforceable by courts). In case of a violation, a person can approach a court of
law.
 List of Fundamental Rights

 There are six fundamental rights of Indian Constitution along with the constitutional articles
related to them are mentioned below:
 Right to Equality (Article 14-18)
 Right to Freedom (Article 19-22)
 Right against Exploitation (Article 23-24)
 Right to Freedom of Religion (Article 25-28)
 Cultural and Educational Rights (Article 29-30)
 Right to Constitutional Remedies (Article 32)
 Right to Equality (Articles 14 – 18)

 Right to equality guarantees equal rights for everyone, irrespective of religion, gender, caste, race or place of birth. It
ensures equal employment opportunities in the government and insures against discrimination by the State in matters of
employment on the basis of caste, religion, etc. This right also includes the abolition of titles as well as untouchability.

 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 provision 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 offence.
 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 Empire such as Rai Bahadur, Khan Bahadur,
etc.
 Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and military honours like Ashok
Chakra, Param Vir Chakra do not belong to this category.
 2. Right to Freedom (Articles 19 – 22)
 Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution
guarantees freedom to citizens. The freedom right includes many rights such as:

 Freedom of speech

 Freedom of expression

 Freedom of assembly without arms

 Freedom of association

 Freedom to practice any profession

 Freedom to reside in any part of the country, Some of these rights are subject to certain conditions of state
security, public morality and decency and friendly relations with foreign countries. This means that the State
has the right to impose reasonable restrictions on them.
 Article 19 guarantees six freedoms.
1. Freedom of speech and expression:
The State guarantees freedom of speech and expression to every person of 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
offence or contempt of court.
2. 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
3. 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 offence or
contempt of court. This freedom gives workers the right to form trade union, which is thus a fundamental right.
 The Police Forces (Restriction of Rights) Act, 1966 prohibits police personnel from forming trade unions.
 The Constitution also allows the Parliament to pass a law restricting the right to form political association to
members of the armed forces, intelligence bureaus, persons employed with telecommunication system.
4. 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 Scheduled Tribes.
5. 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.
6. 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 offences. 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 offence.
 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 offence committed.
 Double jeopardy: This indicates that a person cannot be convicted for the same offence more than once.
 Prohibition against self-incrimination: This implies that no person accused of an offence 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) right to education
 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
 Right against Exploitation (Articles 23 – 24)

 This right implies the prohibition of traffic in human beings, begar, and other forms of forced
labour. It also implies the prohibition of children in factories, etc. The Constitution prohibits the
employment of children under 14 years in hazardous conditions.
 There are two articles of the Constitution which guarantee the right against exploitation. They are
described below:
1. Article 23 – Prohibition of traffic in human beings and forced labour
2. Article 24 – Prohibition of employment of children in factories, etc.
 Article 23 – Prohibition of traffic in human beings and forced labour

 Article 23(1): Traffic in human beings and the beggar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence 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 or class or any of them.
• Exploitation implies the misuse of others’ services by force and/or labour without payment.
• There were many marginalized communities in India who were forced to engage in manual and
agricultural labour without any payment.
• Labour without payment is known as begar.
• This article also makes ‘bonded labour’ unconstitutional.
• Article 23 forbids any form of exploitation.
• Also, one cannot be forced to engage in labour against his/her will even if remuneration is given.
• Forced labour is forbidden by the Constitution. It is considered forced labour if the less-than-minimum
wage is paid.
• Bonded labour is when a person is forced to offer services out of a loan/debt that cannot be repaid.
• The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless persons into
labour and forcing helpless women into prostitution is unconstitutional.
• The Article also makes trafficking unconstitutional.
• Trafficking involves the buying and selling of men and women for illegal and immoral activities.
• Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide scope because of
the inclusion of the terms ‘forced labour’ and ‘traffic’.
 Article 23 protects citizens not only against the State but also from
private citizens.

• The State is obliged to protect citizens from these evils by taking punitive action against perpetrators of these
acts (which are considered crimes), and also take positive actions to abolish these evils from society.
• Under Article 35 of the Constitution, the Parliament is authorized to enact laws to punish acts prohibited by
Article 23.
• Clause 2 implies that compulsory services for public purposes (such as conscription to the armed forces) are
not unconstitutional.
• Laws passed by the Parliament in pursuance of Article 23:
• Suppression of Immoral Traffic in Women and Girls Act, 1956
• Bonded Labour System (Abolition) Act, 1976
 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.
 Right to Freedom of Religion (Articles 25 – 28)

 This indicates the secular nature of Indian polity. There is equal respect given to all religions. There is
freedom of conscience, profession, practice and propagation of religion. The State has no official
religion. Every person has the right to freely practice his or her faith, establish and maintain religious
and charitable institutions.
1. Article 25 (Freedom of conscience and free profession, practice, and propagation of religion)
2. Article 26 (Freedom to manage religious affairs)
3. Article 27 (Freedom as to payment of taxes for promotion of any particular religion)
4. Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational
institutions)
 Article 25 (Freedom of conscience and free profession, practice,
and propagation of religion)

 Article 25 guarantees the freedom of conscience, 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, Jain, or Buddhist religions, and Hindu institutions shall also be construed
accordingly.
• People of the Sikh faith wearing & carrying the kirpan shall be considered as 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.
1. The right to form and maintain institutions for religious and charitable intents.
2. The right to manage its own affairs in the matter of religion.
3. The right to acquire the immovable and movable property.
4. The right to administer such property according to the law.
 Article 27 (Freedom as to payment of taxes for promotion of any particular
religion) &Article 28 (Freedom as to attendance at religious instruction or
religious worship in certain educational institutions)

 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 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 shall 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.
5. Cultural and Educational Rights (Articles 29 – 30)

 These rights protect the rights of religious, cultural and linguistic minorities, by facilitating them to
preserve their heritage and culture. Educational rights are for ensuring education for everyone
without any discrimination.
 fundamental Rights guarantee basic rights to the citizens of India. There are six fundamental rights
enshrined in the Constitution of India, and Articles 29 and 30 deals with the cultural and educational
rights of Indian citizens.
1. This fundamental right intends to preserve the culture of minority groups in India.
2. Indian society is a composite heterogeneous one and its diversity is one of its strengths.
3. 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 any section of the citizens residing in India having a distinct culture,
language, or script, the right to conserve their culture, language and script.
 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 based only on race, religion, caste, language, or any of them.
 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. (Read about Minority Protection in India in the linked article.)
 Article 30(2): The State shall 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.
Right to Constitutional Remedies (32)

 The Constitution guarantees remedies if citizens’ fundamental rights are violated. The government
cannot infringe upon or curb anyone’s rights. When these rights are violated, the aggrieved party
can approach the courts. Citizens can even go directly to the Supreme Court which can issue writs
for enforcing fundamental rights.
 Types of writs
 Five types of writs are provided under the Indian Constitution which can be issued by the Courts.
They are:
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo Warranto
 Habeas Corpus
 The Writ of Habeas Corpus is issued in such cases by the courts when a person is detained illegally. The literal meaning of
Habeas Corpus is ‘You have the body.” Providing a remedy against illegal detention is considered as most effective. By the Writ
of Habeas Corpus, the Court can command to present before the court such a person who has been detained. The Court asks to
provide the grounds for detention and failure to provide reasonable and valid grounds can lead to release immediately.

 Rules related to the writ of Habeas Corpus

• The applicant should be in the custody of another

• Habeas corpus is filed by the detainee and the family members but the court may allow such applications by strangers as well.

• The courts can take Suo moto cognizance of information received from any source and act accordingly in the public interest.

• The writ cannot be successively made to different judges of the same court.

• Habeas Corpus will apply if procedures, as required by law, are not followed in arrests made by the police.
 Mandamus
 The literal meaning of the word mandamus is command. The Writ of Mandamus is issued for the rightful performance
of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer to do
an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation, or any
other type of administrative authority.
This Writ of Mandamus can be issued on the following grounds:

• The right must be recognized by law.

• There must have been an infringement of the right of the petitioner.

• The petitioner must have demanded the performance duty but there has been non-performance.

• There is an absence of an effective alternative remedy.

• The petitioner can show duty is owed to him by the authority and hasn’t been performed.

• On the date of the petition, the right must be subsisting.

• The writ of Mandamus is not issued for anticipatory injury.

 Prohibition
 This writ is as old as common law. The writ of prohibition means ‘to forbid or to prevent’. It is only available during
the pendency of the proceedings and is not an often issued writ. It is an extraordinary remedy by which a Superior
Court can direct an inferior court or tribunal or a quasi-judicial body to stop them from deciding upon a case because
of lack of jurisdiction. If the court or tribunal lacks jurisdiction and still adjudicates the case, it will be considered
invalid because it will be in excess of the sanction of law. The rigidity of writ has liberalized over time, and may also
be issued on grounds of natural justice against anybody.
The writ of prohibition can be issued on these grounds:

 (i) The inferior court or tribunal has overstepped its jurisdiction;

 (ii) The court or tribunal is acting against natural justice;

 (iii) Unconstitutionality of a Statute;

 (iv) Violation of Fundamental Rights

 Certiorari
 Certiorari is a Latin word that means “to certify”. The writ of Certiorari is correct in nature. ‘Certiorari’ is a
judicial order issued by the Supreme Court to an inferior Court or quasi-judicial or any administrative body to
transfer to the Court of records for their inspection and decide on the legality and validity and if the decision is
in contravention of the law. The purpose of this writ is also to take affirmative action, it is both of preventive
and curative nature.
The conditions necessary for the issue of the writ of certiorari are:-

1. The body or person has legal authority;

2. The action must be affecting the rights of the people.;

3. Having the duty to act judicially;

4. The action must be in excess of their jurisdiction.

 Quo Warranto

 ‘Quo Warranto’ means ‘by what authority‘. The Writ of ‘Quo Warranto’ inquires into the legality of the holder of a
public office and their authority. The writ of Quo Warranto is a method to review the proceedings of the actions of
administrative authorities who have been appointed to public office. If it is held that the office holder has no valid
title, then the writ of Quo Warranto is issued to oust the office holder. Equally, it also protects anybody holding a
public office from being deprived of their legal right. This writ can also be filed by who is not the aggrieved person.
Conditions for Writ of Quo Warranto to be issued:
• The office must be a public office to which has been wrongfully assumed.
• The office was created by a statute or by the constitution itself.
• The duties which arise from this office are public in nature.
• The term of the office should be of permanent nature and it shouldn’t be terminable by any person or authority’s
pleasure.
• The person against whom the Writ is to be issued, should be in possession of the office.
 Features of Fundamental Rights
 Fundamental rights are different from ordinary legal rights in the manner in which they are enforced. If a
legal right is violated, the aggrieved person cannot directly approach the SC bypassing the lower courts.
He or she should first approach the lower courts.
 Some of the fundamental rights are available to all citizens while the rest are for all persons (citizens and
foreigners).
 Fundamental rights are not absolute rights. They have reasonable restrictions, which means they are
subject to the conditions of state security, public morality and decency and friendly relations with foreign
countries.
 They are justiciable, implying they are enforceable by courts. People can approach the SC directly in case
of violation of fundamental rights.
 Fundamental rights can be amended by the Parliament by a constitutional amendment but only if the
amendment does not alter the basic structure of the Constitution.
 Fundamental rights can be suspended during a national emergency. But, the rights guaranteed under
Articles 20 and 21 cannot be suspended.
 The application of fundamental rights can be restricted in an area that has been placed under martial law
or military rule.
 Fundamental Rights Available Only to Citizens

 The following is the list of fundamental rights that are available only to citizens (and not to foreigners):
 Prohibition of discrimination on grounds of race, religion, caste, gender or place of birth (Article 15).
 Equality of opportunity in matters of public employment (Article 16).
 Protection of freedom of:(Article 19)
 Speech and expression
 Association
 Assembly
 Movement
 Residence
 Profession
 Protection of the culture, language and script of minorities (Article 29).
 Right of minorities to establish and administer education.