Fundamental Rights Under Indian Constitution

INTRODUCTION

The fundamental rights are the basic rights provided to the citizens of the country as these are the necessary rights required by the people to live decently in a society.  These rights are ‘fundamental’ in the sense that these are protected by the law of the land, i.e. The Constitution, and are guaranteed to all citizens.

Fundamental Rights are enforceable by the courts, subject to certain conditions, of course. This means that if a person is deprived of these rights in any way, he/she can move directly to the High court or the Supreme Court.

The demand for the Fundamental Rights in the Indian Constitution was raised for the first time by Nehru Report in the year 1928, which included some social as well as some economic rights. However, this demand for the fundamental rights was shrugged off by the Simon Commission which came to India in the same year.

The Fundamental Rights are provided in Part III of the Constitution from Article 12 to 35. 

According to Article 12, ‘State’ means the Government and Parliament of India and States as well as all the local authorities within the territory of India.

Article 13 restrains the state from making any laws that may infringe or take away the fundamental rights that are being guaranteed by the Indian Constitution.

 

CLASSIFICATION OF FUNDAMENTAL RIGHTS

• RIGHT TO EQUALITY (ARTICLE 14-18)

• Equality before Law (Article 14) – Article 14 provides equality before law and equal protection of law to everyone. ‘Equality before law’ means absence of any privileges in favour of the person, so it is kind of negative concept. Whereas, ‘Equal protection of law’ means right to be equally treated in equal circumstances, thus making this positive concept.

• Prohibition of Discrimination (Article 15) – It prohibits the state from discriminating any citizen on the bases of race, caste, sex, gender, religion, place of birth, etc. Protects the citizen when subjected to disability or restriction on use of public services like hotels, restaurants, shops, entertainments, etc. Article 15(3) says that the state can make special provisions for women and children; Article 15(4) talks about making special provisions for socially and economically backward classes of citizens as well as Scheduled Castes and Scheduled Tribes.

• Equality of opportunity in Public Employment (Article 16) – This article provides for equal opportunity for all citizens in matters relating to public services and employment (16(1)). No discrimination should be there on the grounds of race, caste, religion, place of birth, etc, in the matters of employment (16(2)).

Article 16(4), however, does talks about reservation of appointment in favour of any backward class citizen. This was recommended by Mandal Commission.

• Abolition of Untouchability (Article 17) – Abolishes Untouchability and is declared as a punishable offence.
• Abolition of Titles (Article 18) – No titles to be conferred by the state except military and academic distinction. Also prohibits Indians from accepting titles from Foreign states or enrolment or office of any kind, from or under foreign State, but they can avail all these with The President’s consent.                                                                                                                             
• RIGHT TO FREEDON (ARTICLE 19-22)

• Freedom of speech and expression and other freedoms (Article 19) – Under these, every citizen has, the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of India; (g) to practice any profession, trade, business, etc.

• Right of protection in respect of conviction of offences (Article 20)- Consists of 3 fundamental principles of natural justice:

1. Ex Post Facto law (20(1)) – 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 charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Ex Post Facto Law, imposes penalties retrospectively.

1. Double Jeopardy (20(1)) – No person to be punished more than once for the same offence.
2. Self-incrimination (20(3)) – No person shall be compelled to be witness against himself.

• Protection of Life and Personal liberty (Article 21) – No person shall be deprived of his life or personal liberty except according to procedure established by law.

• Right to Compulsory Education (Article 21A) – This was added by 86th Amendment Act, 2002. It states that the State shall provide the compulsory education to children of age 6 to 14 years.

• Right to protection against arrest and detention in certain cases (Article 22)- It states the following:

1. Every person, who is arrested, needs to be told the ground for which he/she is arrested and shall have the right to be defended by their lawyer of his/her choice.
2. Every detained person to be produced within 24 hrs. to the nearest magistrate.
3. The above principles are not applicable in case of a person who is enemy alien or detained under any preventive detention law.

• RIGHT AGAINST EXPLOITATION (ARTICLE 23-24)

• Prohibition of Human Trafficking (Article 23) – Prohibits human trafficking, making it a punishable offence.
• Prohibition of Child Labor (Article 24) – Prohibits any child below 14 years to be employed in a factory or hazardous work. Prevents child labor only from dangerous places of employment like factories, coal mines, etc.                                                                                                  
• RIGHT TO FREEDOM OF RELIGION (ARTICLE 25-28)

• Freedom of conscience and free profession, practice and propagation of religion (Article 25) – All persons are entitled to follow any religion and propagate in accordance with public health and morality. The State can also make any economic, financial, political or any secular activity associated with the religious practice.

• Freedom to Manage Religious Affairs (Article 26) – Gives the right to establish religious institutions to manage its affairs, to own and acquire property, etc. Also, subject to public health and morality.

• Freedom from payment of taxes for promotion of religion (Article 27) – No person shall be compelled to pay any tax for the promotion of any religion.
• Freedom as to attendance at religious instruction and worship in certain educational institutions (Article 28)- Prohibits religious instructions in wholly State-funded educational institution and education institutions receiving any aid from the State cannot compel any member to take religious instruction or attend his/her consent.                                                                                           
• CULTURAL AND EDUCATIONAL RIGHTS (ARTICLE 29-30)

• Protection of interests of minorities (Article 29) – Every section of citizens having distinct language, script, culture, etc, has the right to conserve their culture.
• Rights of minorities to establish and administer educational institutions (Article 30) – Confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture. The state shall not discriminate against minority institutions while giving aid to educational institutions.                                                                                                                                                  
• RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

This empowers the citizens to approach the Supreme Court of India to seek protection against any infringement of their Fundamental Rights. Article 32 was termed as the ‘Soul of Indian Constitution’ by Dr. B.R.Ambedkar.

The Supreme Court under this Article can provide 5 writs- Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-Warranto. It should be noted that even High Courts can issue these writs but under Article 226. The difference is that Supreme Court issues writs only for the enforcement of fundamental rights while High Courts issue these writs for other purposes as well.

SOME INTERESTING FACTS ABOUT FUNDAMENTAL RIGHTS

• Fundamental Rights were demanded for the first time under Nehru Report in 1928.
• Right to Property was removed from Fundamental Rights and added to Legal Right by 44th Constitutional Amendment Act 1978, as Article 300A.
• Right to education was added in Fundamental Rights by 86th Constitutional Amendment Act 2002, as Article 21A.
• Under National Emergency, Article 20 and 21 cannot be suspended.
• Fundamental Rights are not absolute as they cease, except 20 and 21, during the time President declares an emergency.