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.
Article 12-13
• It means to define the term, ‘State’ which is
used in Part-III of the Constitution while
mentioning the applications of the provisions
of Fundamental Rights of the Indian Citizen.
• Article 13 of the Indian Constitution mentions,
State to not make any law that violates the
provisions under Part III
Article 12
• Definition of ‘State’ under Article 12
• Article 12 defines ‘State’ as:
• Legislative and Executive Organs of the Union Government:
– Indian Government
– Indian Parliament – Lok Sabha, Rajya Sabha
• Legislative and Executive organs of the State Government:
– State Governments
– State Legislature – Legislative Assembly, Legislative Council of State
• All local authorities
– Municipalities – Municipal Corporations, Nagar Palika, Nagar Panchayats
– Panchayats – Zila Panchayats, Mandal Panchayats, Gram Panchayats
– District Boards
– Improvement Trusts, etc.
Article 12
• Statutory and Non-Statutory Authorities
– Statutory Authorities Examples:
• National Human Rights Commission
• National Commission for Women
• National Law Commission
• National Green Tribunal
• National Consumer Disputes Redressal Commission
• Armed Forces Tribunal
– Non Statutory Authorities Examples
• Central Bureau of Investigation
• Central Vigilance Commission
• Lokpal and Lokayuktas
Right to Equality (Articles 14 – 18)
• Equality Before Law: Article 14 says that no person shall
be denied treatment of equality before the law or the
equal protection of the laws within the territory of India.
The right is extended to all persons whether citizens or
foreigners, statutory corporations, companies,
registered societies or any other type of legal person.
Exceptions: As per article 361, the President of India or
Governor of states is not answerable to any court for the
exercise of their powers/duties and no civil or criminal
proceedings can occur or continue against them in any
court during their term of office.
Prohibition of Discrimination:
• Article 15 provides that no citizen shall be discriminated on
grounds only of religion, race, caste, sex or place of birth.

– Exception: Certain provisions can be made for the women, children,

citizens from any socially or educationally backward class for their
upliftment (such as reservation and access to free education).
Equality of Opportunity in Public Employment: Article 16 of the
Indian constitution provides for equality of opportunity for all
citizens in matters of employment or appointment to any public
office.
Exceptions: There are provisions for reservation in appointments or
posts for any backward class that is not adequately represented in
the state services.
Abolition of Untouchability
• Article 17 abolishes ‘untouchability’ and forbids its practice in any
form. The enforcement of any disability arising out of untouchability
shall be an offence punishable in accordance with law.

– A person convicted of the offence of ‘untouchability’ is disqualified for

election to the Parliament or state legislature. The acts of offences
include:

• Preaching untouchability directly or indirectly.

• Preventing any person from entering any shop, hotel, public place of worship
and place of public entertainment.
• Refusing to admit persons in hospitals, educational institutions or hostels
established for public benefit.
• Justifying untouchability on traditional, religious, philosophical or other grounds.
• Insulting a person belonging to scheduled caste on the ground of untouchability.
Abolition of Titles:
• Article 18 of the constitution of India abolishes titles and
makes four provisions in that regard:

– It prohibits the state from conferring any title on any citizen or a

foreigner (except a military or academic distinction).
– It prohibits a citizen of India from accepting any title from any
foreign state.
– A foreigner holding any office of profit or trust under the state
cannot accept any title from any foreign state without the consent of
the President of India.
– No citizen or foreigner holding any office of profit or trust within the
territory of India can accept any present, emolument or office from
or under any foreign State without the consent of the president.
Right to Freedom (Articles 19 – 22)
• Protection of 6 Rights: Article 19 guarantees to all citizens the six rights of
freedom including:

– Right to freedom of speech and expression.

• Expressing one’s own views, opinions, belief and convictions freely by word of mouth,
writing, printing, picturing or in any other manner.
– Right to assemble peaceably and without arms.

• Includes the right to hold public meetings, demonstrations and take out processions which
can be exercised only on public land.
• It does not protect violent, disorderly and riotous assemblies or strike.
– Right to form associations or unions or co-operative societies.

• It includes the right to form (and not to form) political parties, companies, partnership
firms, societies, clubs, organisations, trade unions or any body of persons.
Con…
– Right to move freely throughout the territory of India.

• The freedom of movement has two dimensions, viz, internal (right to

move inside the country) (article 19) and external (right to move out of
the country and right to come back to the country) (article 21).
– Right to reside and settle in any part of the territory of India.

• The right of outsiders to reside and settle in tribal areas is restricted to

protect the distinctive culture and customs of scheduled tribes and to
safeguard their traditional vocation and properties against exploitation.
– Right to practice any profession or to carry on any occupation,
trade or business. It doesn’t include the right to carry on a
profession that is immoral (trafficking in women or children) or
dangerous (harmful drugs or explosives, etc,).
• Protection in Respect of Conviction for Offences: Article 20 grants
protection against arbitrary and excessive punishment to an accused
person, whether citizen or foreigner or legal person like a company or a
corporation. It provides that:

– No person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the act or subjected to a penalty greater than that
prescribed by the law.
– No person shall be prosecuted and punished for the same offence more than once.
– No person accused of any offence shall be compelled to be a witness against
himself.
• Protection of Life and Personal Liberty: Article 21 declares that no person
shall be deprived of his life or personal liberty except according to
procedure established by law. This right is available to both citizens and non-
citizens.

– The right to life is not merely confined to animal existence or survival but also
includes the right to live with human dignity and all those aspects of life which go
to make a man’s life meaningful, complete and worth living.
Right to Education:
• Article 21 (A) declares that the State shall provide free
and compulsory education to all children of the age of
six to fourteen years.

– This provision makes only elementary education a

Fundamental Right and not higher or professional education.
– This provision was added by the 86th Constitutional
Amendment Act of 2002.
– Before the 86th amendment, the Constitution contained a
provision for free and compulsory education for children
under Article 45 in Part IV of the constitution.
Protection Against Arrest and Detention:
• Article 22 grants protection to persons who are arrested or
detained.
Detention is of two types, namely, punitive (punishment after trial
and conviction) and preventive (punishment without trial and
conviction).
• The first part of Article 22 deals with the ordinary law and includes:

– Right to be informed of the grounds of arrest.

– Right to consult and be defended by a legal practitioner.
– Right to be produced before a magistrate within 24 hours, excluding the
journey time.
– Right to be released after 24 hours unless the magistrate authorises
further detention.
Right against Exploitation (Articles 23 – 24)
• Prohibition of Human Trafficking and Forced Labour:
• Forced labour in India was imposed by landlords, moneylenders and other
wealthy persons in the past.

– The Article 23 of the Indian Constitution prohibits human trafficking and begar
(forced labour without payment) to protect the millions of underprivileged and
deprived people of the country.
– The right is available to citizens of India as well as to non-citizens.
– The right provides against human trafficking in the form of:

• Selling and buying of men, women and children.

• Prostitution
• Devadasis
• Slavery.
– The Immoral Traffic (Prevention) Act 13, 1956 has been enacted to deal with
violations of this fundamental right.
• Prohibition of Child Labour: Article 24 of the Indian Constitution
forbids employment of children below the age of 14 years in
dangerous jobs like factories and mines.
However, it did not prohibit their employment in any harmless or
innocent work.
• The Child Labour (Prohibition and Regulation) Act, 1986 (renamed
as Child & Adolescent Labour (Prohibition and Regulation) Act, 1986
in 2016) specifically deals with the violations of related to this right.

– The 2016 amendment of this act completely prohibited employment or of

children below 14 years of age in all occupations and processes.
– It also prohibited the employment of adolescents (14-18 years of age) in
hazardous occupations or processes
Right to Freedom of Religion (Articles 25 – 28)

• Freedom of Conscience, Profession, Practice and Propagation: Article 25 of the

Constitution of India provides the freedom of conscience, to profess, to practice and
to propagate any religion. These rights are available to citizens as well as non-
citizens.
– Conscience: A person may or may not choose to follow any religion.
– Right to Profess: One can declare his/her religious beliefs and faith openly and freely.
– Right to Practice: Performance of religious worship, rituals, ceremonies and exhibition of
beliefs and ideas.
– Right to Propagate: Persuading people to convert from one religion to another. However, the
Constitution does not allow forcible conversions.

• It only gives us the right to spread information about our religion and thus attract others to it.
– Limitations: The government can impose restrictions on the practice of freedom of religion in
order to protect public order, morality and health.

• The government can interfere in religious matters for rooting out certain social evils. For example:
banning practices like sati, bigamy or human sacrifice.

– Such restrictions cannot be opposed in the name of interference in the right to freedom of religion.
• Freedom to Manage Religious Affairs: The Article 26 of the
Indian Constitution provides every religious denomination
(or any section of it) the right to establish and maintain
institutions for religious and charitable purposes.

– It also empowers the religious denominations to manage their

own affairs in matters of religion.
– Moreover, the right to own and acquire movable and immovable
property and the right to administer such property is also
provided to every religious denomination.
– The rights provided under Article 26 are also subjected to public
order, morality and health.
• Freedom from Taxation for Promotion of a
Religion: The Indian Constitution under Article 27 lays
down that no person shall be compelled to pay any
taxes for the promotion or maintenance of any
particular religion or religious denomination.
It says that no public money, collected through taxes,
shall be spent for the promotion or maintenance of any
particular religion.

– Favouring, patronising or supporting any religion over the

other is prohibited.
• Freedom from Attending Religious Instruction: Article
28 states that no religious instruction shall be provided in any
educational institution wholly maintained out of State (the
territory of India) funds.

– However, the provision is not applicable to educational institutions

administered by the State or established under any endowment or
trust.
– Moreover, no person is required to attend any religious instructions
or worship without his consent in any educational institution
recognised by the State or receiving aid out of State funds.

• In case of a minor, the consent of his guardian is needed.

Cultural and Educational Rights (Articles 29
– 30)
• Protection of Interests of Minorities: Article 29 provides that
every section of citizens residing in any part of the country have
the right to protect and conserve its own distinct language,
script or culture (it provides the right to a
group/section/community of people).

– Further, it says that no citizen shall be denied admission into any

educational institution on grounds only of religion, race, caste, or
language (it provides the rights to an individual citizen).
– Article 29 grants protection to both religious, linguistic as well as
cultural minorities.

• However, the rights are not necessarily restricted to minorities only, as it is

commonly assumed to be. It includes minorities as well as the majority.
• Right of Minorities to Establish and Administer Educational
Institutions: Article 30 grants all the minorities the following rights:

– The right to establish and administer educational institutions of their choice.

– The compensation amount fixed by the State for the compulsory acquisition
of any property of a minority educational institution shall not restrict or
abrogate the right guaranteed to them.

• This provision was added by the 44th Amendment Act, 1978 to protect the right of
minorities in this regard.
– The State shall not discriminate against any educational institution managed
by a minority.
– Thus, the protection under Article 30 is confined only to minorities (religious,
cultural or linguistic) and does not extend to any other section of citizens (as
under Article 29).
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.
What is Writ?
• Writs are a written order from the Supreme Court or
High Court that commands constitutional remedies for
Indian Citizens against the violation of their
fundamental rights. Article 32 in the Indian
Constitution deals with constitutional remedies that an
Indian citizen can seek from the Supreme Court and
High Court against the violation of his/her
fundamental rights. The same article gives the
Supreme Court power to issue writs for the
enforcement of rights whereas the High Court has the
same power under Article 226.
Types of Writs in India
• Habeas Corpus
• Mandamus
• Prohibition
• Certiorari
• Quo-Warranto
Writs
• Habeas Corpus
• The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body
of.’ This writ is used to enforce the fundamental right of individual
liberty against unlawful detention. Through Habeas Corpus,
Supreme Court/High Court orders one person who has arrested
another person to bring the body of the latter before the court.
• Mandamus
• The literal meaning of this writ is ‘We command.’ This writ is used by
the court to order the public official who has failed to perform his
duty or refused to do his duty, to resume his work. Besides public
officials, Mandamus can be issued against any public body, a
corporation, an inferior court, a tribunal, or government for the
same purpose.
Writs
• Prohibition
• The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher
in position issues a Prohibition writ against a court that is lower in
position to prevent the latter from exceeding its jurisdiction or
usurping a jurisdiction that it does not possess. It directs inactivity.
• Certiorari
• The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To
be informed.’ This writ is issued by a court higher in authority to a
lower court or tribunal ordering them either to transfer a case pending
with them to itself or quash their order in a case. It is issued on the
grounds of an excess of jurisdiction or lack of jurisdiction or error of
law. It not only prevents but also cures for the mistakes in the judiciary.
Writs
• Quo-Warranto
The literal meaning of the writ of ‘Quo-
Warranto’ is ‘By what authority or warrant.’
Supreme Court or High Court issue this writ to
prevent illegal usurpation of a public office by
a person. Through this writ, the court enquires
into the legality of a claim of a person to a
public office
Article 33
• Article 33 of the Indian Constitution allows the
parliament to place restrictions and modify
the fundamental rights granted to the
members of armed forces, police forces,
members of intelligent agencies and other
such [Link] has been provided so that
the discipline, order and efficiency can be
maintained in the army.
Article 34
• Article 34 of the Constitution of India impose restrictions of fundamental
rights given to the citizens while martial law is in force in a particular
area. It states that when martial law is imposed, the parliament can
indemnify the men providing services to the state against any act done
while such imposition, provided that the act done was for the purpose of
maintaining and restoring order in that area. It also allows the
parliament to validate any sentence passed under this period.
• This indemnity provided cannot be challenged in the courts of India on
the grounds that it violates a fundamental right. This is because, when
martial law is imposed, the ordinary courts are suspended and all cases
(including civil cases) are prosecuted in the military courts. Hence, the
Supreme Court and the High Courts do not have any appellate
jurisdiction over orders passed by the military courts in this situation.
Article 35
• Article 35 of the Indian Constitution prohibits
the legislature from making laws regarding
Article 32, Article 33 and Article 34 and the
Constitution, It also prohibits the legislature to
make laws providing for punishment given to
anyone for violating any fundamental rights.
Instead, It gives this power only to the
parliament.
Fundamental Rights Available Only to Citizens

• 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 educational institutions
(Article 30).