Chapter 9: FUNDAMENTAL RIGHTS
Constitution guarantees certain
minimum rights to all citizens and aliens [with some
exceptions] of India.
These are applicable not only to people but also organizations
exceptions]. They are justifiable, enforceable by
courts. Inspired from USA
Total 6 rights are present. Right
to property was turned into a legal right.
Features of fundamental rights:
- Government can impose reasonable
restrictions on them on certain grounds. These grounds
can be challenged by courts.
- Some protect against arbitrary action of
state and individual but most protect against action by
- They can be curtailed during emergencies.
Or martial law.
- Their application to armed forces, police
can be restricted or abrogated.
- An aggrieved person can move the SC
directly for protection.
- Only parliament not state legislatures can
make laws to enforce these fundamental rights and punish
those who break / deny them so that uniformity is
maintained throughout India.
The definition of State is all
executive and legislative bodies of State and Union and
all local government
bodies. It includes statutory and non statutory
organisations. A private body
acting as an agent of state is also included.
Supreme Court and high courts can
declare a law null and void if it violates the fundamental
rights. Law includes
an act, ordinance, rules and regulations, bylaws, customs
or norms. Earlier
constitution amendment wasn’t covered in the ambit but SC
ruled that even an
amendment can be challenged.
Both SC and HC have the power of judicial
review. Hence the Supreme Courts jurisdiction in such
matters is original but not exclusive.
Right to Equality [art
Equality before the law and equal protection
of law [Article 14]: This right applies to citizens,
aliens and legal persons. Equality before the law is of
British origin it means “No one is above the law”. The
second concept is of US origin it means “The like should be
treated alike under equal circumstances”. This means that
where equals and unequals are treated differently this
article doesn’t apply.
before law is a part of
Diceys “Rule of law” that has three
- No man can be punished except for
breach of law.
- Equal subjection of all subjects
to ordinary law administered by ordinary courts.
- Constitution isn’t a source of
rights but a result of rights of individuals as defined
and enforced by courts.
The third rule isn’t applicable
to Indian system where constitution is a source of rights.
Exceptions to equality
[constitutional and others]:
or governor enjoys immunity for any
act [civil / criminal] done in office or during exercise
of powers. The enjoy immunity from criminal
proceeding even for personal actions during their term.
Civil proceeding can be initiated against them
for things done in personal capacity during their term
only after giving a 60
B. No person can be held liable
for civil or criminal action for publication in media of a
report of proceeding in legislatures of centre or state.
C. No MP / MLA can be held
responsible in any court for their votes in the
legislatures / anything said by
them in the legislatures.
D. Diplomatic immunity to
ambassadors, foreign dignitaries, UN and its agencies.
E. Laws made to implement the
below articles cannot be challenged on the grounds that
they violate article
Article 39 (b) says: The State
shall direct its policy towards securing that the
ownership and Control of the material resources
of the community are so distributed as best to sub serve
the Common good.
Article 39 (c) says: The state
shall direct its policy towards securing that the
operation of the Economic system does not result
in the concentration of wealth and means of production to
the Common detriment.
Prohibition of Discrimination
on Certain Grounds [Article 15]: The state cannot
discriminate [make adverse
distinctions] amongst citizens on grounds only
on other grounds is allowed] of race, religion, caste, sex
and birthplace. This
provision is applicable to state not
Second aspect is that state as
well as private individuals can’t deny access to
individuals on grounds only
of race, religion, caste, sex and birthplace to
establishments maintained by
Reservations or special
provisions can be made for women, children, and backward
Equality of Opportunity in
Public Employment [article 16]: The state
can’t deny citizens from
employment in public offices [not private] on
grounds only [means
discrimination on other grounds is allowed] of race,
religion, caste, sex,
place of birth or residence, descent.
Residence can be allowed as a
condition for employment for public offices of
states/UT/local bodies but by
act of parliament. Reservations can be made for backward
classes not adequately
represented in state services. Law can allow members of a
religious body to be
of that religion only.
Abolition of Untouchability
This act is applicable for
state as well as private individual and forbids practice
of untouchability in
any form. Protection of civil rights act prohibits the
- Preventing a person from a place
of public worship, shop, hotels, public entertainment,
institutions of public
- Refusing to sell goods or
services; justifying untouchability or preaching it or
insulting people of
scheduled caste on grounds of untouchability.
Abolition of Titles [Article
18]: No state can confer a title other than academic
or military on anyone
[citizen or foreigner]. Any citizen or foreigner working
for state institution can’t
accept titles from foreign countries. Also to accept any
present or emolument
from foreign country consent of president is needed for
citizens and foreigners
working in state institutions.
Titles like Bharat Ratna, Padma
awards were held valid.
Right to Freedom
Protection of Six Rights
[Article 19]: Freedom of speech and expression [only
on public grounds,
peacefully and unarmed], profession [doesn’t apply to
dangerous and immoral
professions], movement [only internal movement in
country], residence, assembly
and associations [no right to strike]. A seventh right to
acquire, hold and
dispose property was deleted and converted to legal right.
The rights are protected against
action of state but not private individual. Also they
are available to citizens
and shareholders of company but not aliens and legal
persons viz. Corporation,
The state can impose restrictions
on these rights only on grounds specified here viz.
security, unity, sovereignty,
integrity of India, friendly relations with foreign
states, public order,
decency or morality, contempt of court, defamation, and
incitement to an
Protection in Respect of
Conviction for Offences [Article 20]:
Protection against arbitrary and
excessive punishments for offenses: It is available
to citizens, aliens and
legal bodies. The provisions as per law is no
retrospective criminal laws can
be passed [civil or tax laws are allowed], no person can
be punished for same
offense twice [not apply to departmental proceedings], no
person can be forced
to be witness against self only in criminal proceeding not
Protection of Life and Personal
Liberty [Article 21]:
No person can be
deprived life or liberty but as per procedure established
by law but the law
should be reasonable, fair and just. This is available to
citizens and aliens.
Right to Education [Article 21
A]: This provision guarantees free and
compulsory education to all between age
of 6-14 yrs. Only elementary education is a right not
higher education or
Protection against Arrest and
Detention [Article 22]: This article has two
provisions preventive detention
and punitive detention. Punitive detention is after a
person is tried and
convicted. Preventive detention is for preventing him from
offense in the future. If a person is arrested under
ordinary law then he
should be informed of reasons, can be defended by lawyer,
should be taken to magistrate
in 24 hrs and should be released after 24 hrs unless
For preventive detention the
maximum period for detention is 3 months unless an
advisory board of HC judges
extends the period. Parliament and states can make laws
detention. These laws can specify the period of detention
till which a person
can be held without taking him to advisory board. What is
the max period of
detention. Procedure to be followed by advisory board.
Preventive detention is not an
integral part of the constitution of any democratic
Right against Exploitation -
Prohibition of Traffic in Human Beings and Forced Labour
[Article 23]: This
right is available to both citizens and aliens. It is
available against both
State action and private persons.
Article 23 makes an exception in
this regard and allows state to make service for public
purposes, military or
social service, compulsory without pay. However state
can’t make any
discrimination on grounds only of religion, class, race
Article 24 prohibits employment
of children below age of 14 yrs in any factory, mine or
Right to Freedom of Religion
(Freedom of Conscience and Free Profession, Practice and
Religion) [Article 25]:
This allows all
to freedom of conscience, right to
propagate-profess-practice religion of
choice. This doesn’t have right to convert forcibly. These
rights are available
to citizens and aliens.
State can have restrictions on
this on certain grounds. Hindus for this article includes
Sikhs, Buddhists and Jains.
Second provision is Freedom to
Manage Religious Affairs [Article 26] every
religious denomination can
establish and maintain institutions for religious and
right to manage own religious affairs, buy and administer
movable and immovable
Thus article 25 is for
individuals and 26 are for religious groups.
Article 27 says that no
can be forced to pay taxes to promote a religion or
maintain any religious
group. State cannot spend public money for promoting any
particular religion or
group. But it can for all religions and groups. This
article prevents state
from imposing a tax for religious purpose but imposing a
fee is allowed.
Article 28 says no religious
instruction shall be provided in an institution maintained
wholly by state
funds. But for institution administered by state but
established by trust for
religious purposes, this provision doesn’t apply. For
institutions that are
recognized by the state or receive aid from state,
religious instruction is
permitted on voluntary basis.
Cultural and Educational Rights
(Protection of Interests of Minorities) [Article 29]:
A section of citizens
[minorities and majority] living anywhere in India can
conserve their language,
script and culture. No person can be denied admission in
institution maintained by state funds or receiving aid out
of state funds on
grounds only of race, religion, caste, language.
This includes religious and
linguistic minorities. Also there is a right to agitate
for protection of a
Right of Minorities to Establish
and Administer Educational Institutions [Article 30]: Includes
and linguistic minorities.
only minorities to establish and administer educational
institutes of choice.
State can’t discriminate between religions for granting
aid. State can’t
acquire property of religious minority institutions
State can regulate minority
institutions that seek recognition from it or aid.
Article 32 Right to
This is the most important
article of the constitution as it creates and empowers
machinery to enforce the
fundamental rights. The Supreme Court and high courts
[article 226] can issue
writs to protect for enforcement of these rights.
Supreme Court is thus the guarantor
or guardian of fundamental rights. It is the guardian of
the constitution. It
has original jurisdiction in this matter i.e. a person can
move the SC directly
not just by way of appeals. Also the HC has original
jurisdiction in matter of
protection of fundamental rights.
President can suspend the right
to move Supreme Court for enforcement of fundamental
rights during national
Difference in writ jurisdiction
of HC and SC:
SC as well as HC can issue these
writs. Parliament can empower any other court for this
purpose but so far it hasn’t.
SC can issue writs for enforcing
fundamental rights but HC can issue writs for fundamental
rights as well as for
ordinary legal rights. SC can issue writs against a person
throughout India but HC can only issue writs against a
person or government
within its territorial jurisdiction or outside only if
cause of action arises
within its jurisdiction.
HC can refuse to issue writs as article 226
with discretionary power but SC has to exercise its power
Hence SC is the protector and
defender of fundamental rights.
Types of writs:
Habeas Corpus: Can be issued to
public authorities or private individuals to produce a
detained person before
Mandamus: Issued by court against
public authority [not private individual] to perform a
duty [only mandatory not
discretionary] which he has failed / refused to perform.
Prohibition: Can be issued by
higher court to lower court [or judicial / quasi judicial
authority] to stop it
from exceeding its jurisdiction [only preventive]. Can’t
be issued against non
judicial or private individual.
Certiorari: Can be issued by
higher courts to lower courts / judicial or quasi-judicial
administrative tribunals. This is to transfer a case from
lower court to itself
or squash an order of lower court. It’s not only
preventive but curative.
However it’s not available against legislatures, private
individuals or bodies.
Quo warranto: Issued to inquire
legality of claims of a person to a public office
[permanent office created by
statute / constitution only not private posts or temporary
posts]. Unlike above
writs this can be sought by any individual not just
Fundamental rights of members of
Parliament not states can pass a
law to restrict fundamental rights of members of armed
forces to ensure proper
discharge of duties and maintenance of discipline amongst
them. Such a law can’t
be challenged in any court on grounds of contravention of
any fundamental rights.
Parliament can also exclude court
martial’s from writ jurisdiction of SC and HC so far as
fundamental rights is concerned.
Martial law [Article 34]
Government can declare military
rule in any part of India [not whole] under breakdown of
law and order. It is
different from emergency. Parliament can indemnify any
public servant for
actions done by him to restore peace and order while
martial law is in force.
Such a law can’t be challenged in any court on grounds of
contravention of any
It suspends government and
ordinary law courts in that area. It affects only
fundamental rights [not centre
state relations, financial resources etc].
Criticism of Fundamental Rights
1- Excessive limitations
2- No social or economic rights
[social security, work, employment] this is found in
constitution of democratic
countries as well as some socialists.
3- Lack of clarity
4- No permanency / Suspension
5- No consistency philosophy
6- Preventive detention
7- Expensive remedy
Q. Which of the following are envisaged by the Right against Exploitation in the Constitution of India?
1. Prohibition of traffic in human beings and forced labour
2. Abolition of untouchability
3. Protection of the interests of minorities
4. Prohibition of employment of children in factories and mines
Select the correct answer using the code given below:(UPSC CSAT-2017)
1, 2 and 4 only
2, 3 and 4 only
1 and 4 only
1, 2, 3 and 4
Ans . C
Right to equality and
Cultural and educational rights cover points 2 and 3 respectively
Q. Which one of the following statements is correct? (UPSC CSAT-2017)
Rights are claims of the State against the citizens.
Rights are privileges which are incorporated in the Constitution of a State
Rights are claims of the citizens against the State.
Rights are privileges of a few citizens against the many
Ans . C
People can demand from the states these rights.
Q. Right to vote and to be elected in India is a (UPSC CSAT 2017)
Ans . D
Representation of Peoples Act gives it, it is not included in Fundamental rights.
Score more than 80% marks and move ahead else stay back and read again!