• The Constitution of England is unwritten. Hence, there is, in England, no code of Fundamental Rights as exists in the Constitution of the United States or in other written Constitutions of the world. This does not mean, however, that in England there is no recognition of those basic rights of the individual without which democracy becomes meaningless.

  • The object, in fact, Is secured here in a different way. The foundation of individual rights In England may be said to be negative, In the sense that an individual has the right and freedom to take whatever action he likes, so long as he does not violate any rule of the ordinary law of the land. Individual liberty is secured by judicial decisions determining the rights of individuals in particular cases brought before the Courts.

  • The Judiciary is the guardian of individual rights In England as elsewhere; but there is a fundamental difference. While in England, the Courts have the fullest power to protect the individual against executive tyranny, the Courts are powerless as against legislative aggression upon individual rights.

  • In short, there are no fundamental rights binding upon the Legislature in England. The English Parliament being theoretically 'omnipotent', there is no law which it cannot change. As has been already said, the individual has rights, but they are founded on the ordinary law of the land which can be changed by Parliament like other laws.

  • So, there is no right which may be said to be 'fundamental' in the strict sense of the term. Another vital consequence of the supremacy of Parliament is that the English Court has no power of judicial review over legislation at all. It cannot declare any law as unconstitutional on the ground of contravention of any supposed fundamental or natural right.

  • The fundamental difference in approach to the question of Individual rights between England and the United States Is that while the English were anxious to protect Individual rights from abuse of executive power, the framers of the of the American Constitution were apprehensive of tyranny not only from the Executive but also from the Legislature, -ie., a body of men who for the time being form the majority In the Legislature.

  • So, the American Bill of Rights contained in the first Ten Amendments of the Constitution of the U.S.A. is equally binding upon the Legis- lature as upon the Executive.

  • The result has been the establishment in the United States of a 'judicial supremacy', as opposed to the 'Parliamentary supremacy' in England.

  • The Courts in the United States are competent to declare an Act of Congress as unconstitutional on the ground of contravention of any provision of the Bill of Rights.

  • Further, It is beyond the competence of the Legislature to modify or adjust any of the fundamental rights in view of any emergency or danger to the State.

  • That power has been assumed by the Judiciary in the United States

  • In India, the Simon Commission and the Joint Parliamentary Committee which were responsible for the Government of India Act, 1935, had rejected the idea of enacting fundamental rights on the ground that "abstract declarations are useless, unless there exist the will and the means to make them effective".

  • But nationalist opinion, since the time of the Nehru Report, 1 was definitely in favour of a Bill of Rights, because the experience gathered from the British regime was that a subservient Legislature might serve as a handmaid to the Executive in committing inroads upon individual liberty.

  • Regardless of the British opinion, therefore, the makers of our Constitution adopted Fundamental Rights to safeguard individual liberty and also for ensuring (together with the Directive Principles) social, economic and political justice for every member of the community.

  • So, the Constitution of India has embodied a number of Fundamental Rights in Part III of the Constitution, which are (subject to exceptions, to be mentioned hereafter) to act as limitations not only upon the powers of the Executive but also upon the powers of the Legislature.

  • Though the model has been taken from the Constitution of the United States, the Indian Constitution does not go so far, and rather effects a compromise between the doctrines of Parliarneruary sovereignty and Judicial supremacy.

  • On the other hand, the Parliament of India cannot be said to be sovereign in the English sense of legal omnipotence,-for, the very fact that the Parliament is created and limited by a written Constitution enables our Parliament to legislate only subject to the limitations and prohibitions imposed by the Constitution, such as, the Fundamental Rights, the distribution of legislative powers, etc.

  • In case any of these limitations are transgressed, the Supreme Court and the High Courts are competent to declare a law as unconstitutional and void. So far as the contravention of Fundamental Rights is concerned, this duty is specially enjoined upon the Courts by the Constitution (Art. 13), by way of abundant caution. To this extent, our Constitution follows the American model rather than the English.

  • The powers of the Judiciary vis-a-vis the Legislature are weaker in India than in the United States in two respects:

  • Firstly, while the declarations in the American Bill of Rights are absolute and the power of the State to impose restrict upon the fundamental rights of the individual in the collective interests had to be evolved by the Judiciary,-in India, this power has been expressly conferred upon the Legislatures by the Constitution Itself in the case of the major fundamental rights, of course, leaving a power of judicial review in the hands of the Judiciary to determine the reasonableness of the restrictions imposed by the Legislature.

  • Secondly, by a somewhat hasty step, the Janata Government, headed by Morarji Desai, has taken out an important fundamental right, namely, the right of Property, by omittng Arts. 19(1)(f) and 31, by the 44th Amendment Act, 1978.

  • Of course, the provision in Art. 31(1) has, by the same amendment, been transposed to a new article ,-Art. 300A, which is outside Part III of the Constitution and has been labelled as 'Chapter IV' of Part XII (which deals with 'Finance, Property. Contracts and Suits'),-but that is not a 'fundamental Right'.

  • While under the Congress rule for 30 years, the ambit of the Funda- mental Rights embodied in Part III of the original Constitution had been circumscribed by multiple amendments, bit by bit, the death blow to one of the Fundamental Rights came from the Janata Government.

  • The net result of the foregoing amendments inflicted upon the right to property are-

  • The right not to be deprived of one's property save by authority of law Is no longer a 'fundamental right'. Hence. if anybody's property is taken away by executive fiat without the authority of law or in contravention of a law, the aggrieved Individual shal1 have no right to move the Supreme Court under Art. 32.

  • If a Legislature makes a law depriving a person of his property, he cannot challenge the reasonableness of the restrictions imposed by such law, invoking Art. 19(1)(f), because that provision has ceased to exist.

  • Since C1.(2) of Art. 31 has vanished, the individual's right to property is no longer a guarantee against the Legislature in respect of any compensation for loss of such property. Article 31(2) [In the original Constitution] embodied the principle that if the State makes a compulsory acquisition or requisitioning of private property, it must (a) make a law; (b) such law must be for a public purpose; and (c) some compensation must be paid to the expropriated owner.

  • Of course, by the 25th Amendment of 1971, during the the regime of Mrs. Gandhi, the requirement of 'compensation' was replaced by an amount', the adequacy or which could no longer be challenged before the Courts.

  • Nevertheless, the Supreme Court held, the aggrieved individual might complain If the 'amount' so offered was illusory or amounted to 'confiscation' But even such an innocuous possibility has been foreclosed by the 44th Amendment

  • The short argument advanced in the Statement of Objects and Reasons of the 45th Amendment Bill for deleting the fundamental right to property Is that it was only being converted into a legal right

  • What is meant is that while Arts. 19(1)(f) and 31(2) of the original Constitution operated as limitations on the Legislature itself, the 45th Amendment bill installs the Legislature as the guardian of the individual's right to property, without any fetter on its goodwill and wisdom.

  • But if the Legislature could be presumed to be so infallible and innocent, this would be a good argument for omitting all the fundamental rights from Part III. As it has been pointed out earlier, the very justification of putting limitations on the Legislature by adopting a guarantee of Fundamental Rights is that history has proved that the group of human beings constituting, for the time being, the majority in a Legislative body, are not always infallible and that is why constitutional safeguards are necessary to permanently protect the individual from legislative tyranny.

  • Thirdly, by subsequent amendments, the arena of Fundamental Rights has been narrowed down by introducing certain exceptions to the operation of fundamental rights, namely, Articles 31A, 31B, 31C, 31D

  • Of these, Arts. 31A, 31C are exceptions to the fundamental rights enumerated in Articles 14 and 19; this means that any law falling under the ambit of Art. 31A (e.g., a law for agrarian reform), or Art. 31C (a law for the'implemen. tation of any of the Directive Principles contained in Part IV of the Constitution), cannot be invalidated by any Court on the ground that it contravenes any of the fundamental rights guaranteed by Art 14 (equality before law); Art. 19 (freedom of expression, assembly, etc.).

  • Art. 31B, however, offers almost complete exception to all the fundamental rights enumerated in Part III. If any enactment is included in the 9th Schedule, which is to be read along with Art. 31B, then such enactment shall be immune from constitutional invalidity on the ground of contravention of any of the fundamental rights. But shall be open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24-4-1973 (ie. the date of decision in Kesavananda's case)

  • Fourthly by the 42nd Amendment Act, 1976, a countervailing factor has been introduced, namely, the Fundamental Duties mentioned in Art. 51A Though these Duties are not themselves enforceable in the Courts nor their violation, as such, punishable, nevertheless, if a Court, before which a fundamental right is sought to be enforced, has to read all parts of the constitution, it may refuse to enforce a fundamental Right at the instance of an individual who has patently violated any of the Duties specified in Art. 51A. If so, the emphasis of the original Constitution on fundamental rights has been minimised.

  • Fifthly, the category of 'fundamental rights' under our Constitution is exhaustively enumerated in Part III of the Constitution. The American Constitution (9th Amendment) expressly says that the enumeration of certain rights in the Bill of Rights "shall not be construed to deny or disparage others retained by the people." This rests on the theory of inalienable natural rights which can by no means be lost to the individual in a free society; the guarantee of some of them in the written Constitution cannot, therefore, render obsolete any right which Inhered in the individual even before the Constitution, e.g., the right to engage in political activity. But there is no such non enumerated right under our Constitution.

  • As was observed in the early case of A.K. Gopalan v. State of Madras, the Legislatures under our Constitution being sovereign except insofar as their sovereignty has been limited by the Constitution either expressly or by necessary implication, the Courts cannot impose any limitation upon that sovereignty either on the theory of the 'spirit of the Constitution' or of that of 'natural rights', i.e., rights other than those which are enumerated in Part III of the Constitution.

  • Any expansion of the Fundamental Rights under the Indian Constitution must therefore, rest on judicial interpretation and the Supreme Court has gone ahead in this direction by enlarging the scope of Art. 21

  • It should not be supposed, however, that there is no other justiciable right provided by our Constitution outside Part III upon the State are imposed by other provisions of the Constitution and these limitations give rise to corresponding rights to the individual to enforce them in a Court of law if the Executive or the Legislature violates any of them.

  • Thus, Art. 265 says that "no tax shall be levied or collected except by authority of law" This provision confers a right upon an individual not to be subjected to arbitrary taxation by the Exe- cutive, and if the ExecuUve seeks to levy a tax without legislative sanction, the aggrieved individual may have his remedy from the Courts.

  • The new provision in Art. 300A belongs to this category. Similarly. Art. 301 says that "subject to the provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free".

  • If the Legislature or the Executive imposes any restriction upon the freedom of trade or intercourse which is not justified by the other provisions of Part XIII of the Constitution, the Individual who is affected by such restriction may challenge the action by appropriate legal proceedings.

  • Though the rights of both these classes are equally justiciable, the constitutional remedy by way of an application direct to the Supreme Court under Art. 32, which is itself included in Part III, as a 'fundamental right', is available only in the case of fundamental rights.

  • If the right follows from some other provision of Difference between the Constitution, say, Art. 265 or Art, 301, the Fundamental aggrieved person may have his relief by an ordinary suit or, by an application under Art 226 to the High secured by other Court, but an application under Art. 32 shall not lie, unless the invasion of the non-fundamental right involves the violation of some fundamental right as well.

  • As the word 'fundamental' suggests, under some Constitutions, fundamental rights are immune from constitutional amendment; in other words, they are conferred a special sanctity as compared with other provisions of the Constitution. But this principle has been rejected by the Indian Constitution, as it stands interpreted by amendments of the Constitution themselves and judtcial decisions.

  • Of course, no part of the Constitution of India can be changed by ordinary legislation unless so authorised by the Constitution Itself (e.g., Art 4); but all parts of the Constitution except the basic features can be amended by an Amendment Act passed under Art. 368, including the fundamental rights.

  • Until the case of Golak Nath, the Supreme Court had been holding that no part of our Constitution was unamendable and that Parliament might, by passing a Constitution Amendment Act, in compliance with the requirements of Art. 368, amend any provision of the Constitution, including the Fundamental Rights and Art. 368 itself.

  • According to this earlier view the Courts could act as the guardian of fundamental rights only so long as thel were not amended by the Parliament of India by the required majority of votes. In fact, some of the amendments of the Constitution so far made were effected with a view to superseding judicial pronouncements which had invalidated social or economic legislation on the ground of contravention of fundamental rights.

  • But the Supreme Court cried halt to the process of amending the Fundamental Rights through the amending procedure laid down in Art. 368 of the Constitution, by its much-debated decision in Golak Nath v. State of Punjab.

  • In this case. overruling its two earlier decisions, the Supreme Court held that Fundamental Rights, embodied in Part III, had been given a 'transcendental position' by the Constitution, so that no authority functioning under the Constitution, including Parliament exercising the amending power under Art. 368, was competent to amend the Fundamental Rights.

  • But by the 24th Amendment Act, 1971, Arts. 13 and 368 were amended to make it clear that Fundamental Rights were amendable under the procedure laid down in Art. 368, thus overriding the majority decision of the Supreme Court in Golak Nath. v. State of Punjab.

  • The majority decision in Kesavananda Bharat case held the validity of these amendments and also overruled Golak Nath's case, holding that it is competent for Parliament to amend Fundamental Rights under Art. 368, which does not make any exception in favour of fundamental rights; nor does Art. 13 comprehend Acts amending the Constitution itself.

  • At the same time Kesauananda's case also laid down that there were implied limitations on the power to 'amend' and that power cannot be used to alter the 'basic features' of the Constitution.

  • A big limitation that stands in the way of Parliament, acting by a special majority, to introduce drastic cbanges in the Constitution, is the judicially innovated doctrine of 'basic features' which can be eliminated only if a Bench larger than the '13-Judge Bench in Kesauananda's case' be prepared to overturn the decision in that case.

  • In the meantime, applying Kesavananda; the majority of the Constitution Bench has invalidated Cls. (4) and (5) of Art. 368 as violative of the basic features of the Constitution [Minerva Mills v. Union of India, AIR 1980 S.C. 1789 (paras 21, 28)).

  • The provisions of Part III of our Constitution which enumerate the Fundamental Rights are more elaborate than those of Fundamental any other existing written constitution relating to fundamental rights, and cover a wide range of topics,

  • The Constitution itself classifies the Fundamental Rights under seven groups as follows:

    1. Right to equality.

    2. Right to particular freedoms.

    3. Right against exploitation.

    4. Right to freedom of religion.

    5. Cultural and educational rights.

    6. Right to property.

    7. Right to constitutional remedies.

  • Of these the Right to Property has been eliminated by the 44th Amendment Act, so that only six freedoms now remain, in Art. 19(1) [see under 44th Amendment'.

  • Another classification which is obvious is from the point of view of persons to whom they are available.

  • Some of the fundamental rights are granted only to citizens-(i) Protection from discrimination on grounds only of religion, race, caste. sex or place of birth (Art. 15); (ii) Equality of opportunity in matters of public employment (Art. 16]; (iii) Freedoms of speech, assembly, association, movement, residence and profession [Art. 19]; (iv) Cultural and educational rights of minorities [Art. 30].

  • Some of the fundamental rights, on the other hand, are available to any person on the soil of India-Citizen or foreigner--(i) Equality before the law and equal protection of the Laws (ii) Protection in respect of conviction against ex post facto laws, double punishment and self incrimination (iii) Protection of life and personal liberty against action without authority of law (iv) Right against exploitation (Art. 23); (v) Freedom of religion (Art. 25); (vi) Freedom as to payment of taxes for the promotion of any particular religion [Art. 27]; (vii) Freedom as to attendance at religious instruction or worship in State educational institutions

  • Some of the Fundamental Rights are negatively worded, as prohibitions to the State, e.g., Art. 14 says-"The State shall not deny to any person equality before the law" Similar are the provisions of Arts. 15(1); 16(2); 18(1); 20, 22(1); 28(1). There are others, which positively confer some benefits upon the individual [e.g., the right to religious freedom, under Art. 25, and the cultural and educational rights. under Arts. 29(1), 30(1)].

  • Still another classification may be made from the standpoint of the extent of limitation imposed by the different fundamental rights upon legislative power.

  • On the one hand we have some fundamental rights, such as under Art. 21. which are addressed against the Executive but impose no limitation upon the legislature at all. Thus, Art. 21 simply says that- "No person shall be deprived of his life or personal liberty except according to the procedure established by law.

  • It was early held by our Supreme Court that a competent Legislature is entitled to lay down any procedure for the deprivation of personal liberty and that the Courts cannot interfere with such law on the ground that it is unjust, unfair or unreasonable. . In this view, the object of Art. 21 is not to impose any limitation upon the legislative power but only to ensure that the Executive does not take away a man's liberty except under the authority of a valid law, and in strict conformity with the procedure laid down by such law. In later cases, however the Supreme Court has found it difficult to immunise laws made under Art. 21 from attack on the ground of 'unreasonableness' under a relevant clause of Art. 19(1), or Art. 14, and recent Supreme Court decisions show an increasing inclination in that direction.

  • To the other extreme are Fundamental Rights which are tntended as absolute limitations upon the legislative power so that it is not open to the Legislature to regulate the exercise of such rights, e.g . the rights guaranteed by Arts. 15, 17, 18. 20, 24.

  • In between the two classes stand the rights guaranteed by Art. 19 which itself empowers the Legislature to impose reasonable restrictions upon the exercise of these rights, in the public interest, Though the individual rights guaranteed by Art. 19 are, in general, binding upon both the Executive and the Legislature, these 'authorities' are permitted by the Constitution to make valid exceptions to the rights within limits imposed by the Constitution.

  • Such grounds, in brief, are security of the State, public order, public morality and the like.

  • All the above rights are available against the State It is now settled that the rights which are guaranteed by Arts. 19 and 21 are guaranteed against State action as distinguished from violation of such rights by private individuals.

  • In case of violation of such rights by individuals the ordinary legal remedies may be available but not the constitutional remedies.

  • State action', in this context, must, however, be understood in a wider sense. For interpreting the words 'State' wherever it occurs in the Part on Fundamental Rights, a definition has been given in Art. 12 which says that, unless the context otherwise requires, 'the State' will include not only the Executive and Legislative organs of the Union and the States, but also local bodies (such as municipal authorities) as well as 'other authorities'.

  • This latter expression refers to any authority or body of persons exercising the power to issue orders, rules, bye-laws or regulations having the force of law e.g., a Board having the power to issue statutory rules, Or exercising governmental powers. Even the act of a private individual may become an act of the State if it is enforced or aided by any of the authorities just referred to.

  • It should be noted, however that there are certain rights included in Part III which are available not only against the State but also against private individuals, e.g., Art. 15(2) [equality in regard to access to and use of places of public resort]; Art. 17 [prohibition of untouchability]; Art. 18(3) [prohi- bition of acceptance of foreign title]; Art 23 [prohibition of traffic in human beings]; Art. 24 [prohibition of employment of children in hazardous employment.

  • But these provisions in Part. III are not self-executory, that is to say, these articles are not directly enforceable; they would be indirectly enforceable; only if some law is made to give effect to them, and such law is violated. It follows that the classification of fundamental rights into executory and self-executory is another possible mode of classification.


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 [with some exceptions]. They are justifiable, enforceable by courts. Inspired from USA constitution.

Total 6 rights are present. Right to property was turned into a legal right.

Features of fundamental rights:

  1. Government can impose reasonable restrictions on them on certain grounds. These grounds can be challenged by courts.
  2. Some protect against arbitrary action of state and individual but most protect against action by state.
  3. They can be curtailed during emergencies. Or martial law.
  4. Their application to armed forces, police can be restricted or abrogated.
  5. An aggrieved person can move the SC directly for protection.
  6. 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.


Judicial Review

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.

Fundamental Rights

Right to Equality [art 14-18]: 

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.

      Equality before law is a part of Diceys “Rule of law” that has three aspects:

  1. No man can be punished except for breach of law.
  2. Equal subjection of all subjects to ordinary law administered by ordinary courts.
  3. 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]:

A.  President 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 day notice.

B. No person can be held liable for civil or criminal action for publication in media of a significantly true 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 14.

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 [means discrimination on other grounds is allowed] of race, religion, caste, sex and birthplace.  This provision is applicable to state not private individuals. 

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 public funds.


Reservations or special provisions can be made for women, children, and backward classes.

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 [Article 17]:  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 following:

  1. Preventing a person from a place of public worship, shop, hotels, public entertainment, institutions of public benefit;
  2. 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, institutions.

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 offence.


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 civil.

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 professional.


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 committing an 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 magistrate authorizes further detention.

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 for preventive 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 country.


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 and caste.

Article 24 prohibits employment of children below age of 14 yrs in any factory, mine or hazardous activity.


Right to Freedom of Religion (Freedom of Conscience and Free Profession, Practice and Propagation of 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 charitable purposes, right to manage own religious affairs, buy and administer movable and immovable property.

Thus article 25 is for individuals and 26 are for religious groups.

Article 27 says that no person 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 an educational 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 language.


Right of Minorities to Establish and Administer Educational Institutions [Article 30]: Includes both religious and linguistic minorities.  This allows 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 compulsorily.

State can regulate minority institutions that seek recognition from it or aid.


Article 32 Right to Constitutional remedies:

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 emergency.

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 or government 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 confers it with discretionary power but SC has to exercise its power compulsorily.

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 the court.

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 bodies or 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 aggrieved person.

Fundamental rights of members of armed forces:

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 enforcement of 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 fundamental rights.

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 during emergency

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. 1, 2 and 4 only

  2. 2, 3 and 4 only

  3. 1 and 4 only

  4. 1, 2, 3 and 4

Ans . C

  1. 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)

  1. Rights are claims of the State against the citizens.

  2. Rights are privileges which are incorporated in the Constitution of a State

  3. Rights are claims of the citizens against the State.

  4. Rights are privileges of a few citizens against the many

Ans . C

  1. People can demand from the states these rights.

Q. Right to vote and to be elected in India is a (UPSC CSAT 2017)

  1. Fundamental Right

  2. Natural Right

  3. Constitutional Right

  4. Legal Right

Ans . D

  1. Representation of Peoples Act gives it, it is not included in Fundamental rights.


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