Chapter 9: FUNDAMENTAL RIGHTS
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.
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
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".
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.
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 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,
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
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
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
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.
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.
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
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
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
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:
Right to equality.
Right to particular freedoms.
Right against exploitation.
Right to freedom of religion.
Cultural and educational rights.
Right to property.
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
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
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
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
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
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
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
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'.
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
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
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.
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