Fundamental Rights

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“Rights are those condition of social life without which no man seeks to be himself at his best”

Fundamental Rights are considered as basic human rights of all citizens, irrespective of their gender, caste, religion or creed etc. Fundamental Rights are also known as cornerstone of Indian constitution. These rights are called fundamental rights because of two reasons: Firstly, Fundamental Rights are enshrined in the Constitution. Secondly, Fundamental Rights are justiciable (enforceable by courts). In case of a violation, a person can approach a court of law. The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity.

Fundamental Rights are guaranteed in the Part III of the Constitution from Article 12 to 35 in the form of six broad categories. These are:

  1. Right to Equality (Art. 14-18)
  2. Right to Freedom  (Art. 19-22)
  3. Right against Exploitation (Art. 23-24)
  4. Right to Freedom of Religion (Art. 25-28)
  5. Cultural and Educational Rights (Art. 29-30)
  6. Right to Constitutional Remedies (Art. 32)

The right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution.

RIGHT TO EQUALITY (Art. 14-18)

  • Article 14: Equality before the Law or the Equal Protection of Law

It says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality Before Law means no man is above law. It is a negative concept. It ensures juristic equality under the constitution. Equal Protection of Law is a positive concept, which says that law shall be applied equally among individuals who are placed equally. It means like should be treated alike.

Article 14 better known for the classification test. The Classification test is used to check that any article is violative against the article 14. In the case of State of Bombay v. F.N. Balsara[i], the court said that in the test of permissible classification two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them.

  • Article 15: Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth

Article 15 states that there shall be no discrimination on the basis of cast, race, religion, sex or place of birth only. Also, no discrimination with regard to access of shops, hotels & public places including bathing Ghats. This Article empowers state to make special provisions for the advancement of SC & ST (including their admission in educational institutions. Moreover, empowers state to make special provisions for women & children.

In Choki  v. the State of Rajasthan[ii], It was held that Article 15(3) talks about special provisions for women and children. And under the light of this provision, A bail was granted to a woman because there is a young child dependent on her, thus it becomes necessary for the state to protect the rights of the child.

In Indira Sawhney v. Union of India[iii], 27% reservation for the ‘Other Backward Classes’ was introduced. Supreme Court of India put up a limit of 50% as the total percentage of reservation as it was reasoned that allowing the limit to exceed will deprive others of their right to equality. Supreme Court also provided for the guidelines to exceed the limit of reservation under extraordinary situations.

  • Article 16: Equality of Opportunity in matters of Public Employment

Article 16 states that there shall be no discrimination against employment under state office on grounds only of religion, sex, caste, descent, place of birth or residence. Equality of opportunity to all citizens for employment under state office

Exception 1: Article 16 Forbids discrimination on grounds of residence but if there is a good region to retain certain posts for residents only then parliament may by law regulates the extent by which it would be possible to depart from article 16.

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Exception 2: Reservation of employment for SCs & STs along with seats reserved in matter of promotion with consequential seniority.

In K.C. Vasanth Kumar v. State of Karnataka[iv], the Supreme Court has suggested that the policy of reservations should be reviewed every five years or so and if a class has reached up to that level where it does not need the reservation. Its name should be deleted from the list of backward classes.

  • Article 17: Abolition of Untouchability

Article 17 of the Constitution abolishes the practice of untouchability. The practice of untouchability is an offense under the Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) and anyone doing so is punishable by law. This Act states that whatever is open to the general public should be open to all the citizens of India.

In the case of Devarajjah v. Padmana[v], The Court observed that ‘untouchability’ under Article 17 of the Constitution should not be taken in the literal sense but should be understood as a practice that has prevailed and developed in India.

  • Article 18: Abolition of Titles

The Article 18 of the Constitution forbids the State from conferring any titles on the citizens of India and also they are prohibited from accepting any title given by a foreign State. However, Military and academic distinctions can be conferred upon. The title which comes along with awards such as Bharat Ratna and Padma Vibhushan do not fall within the constitutional prohibition and thus, they do not fall under the definition of title under Article 18 of the Constitution.

In the case of Balaji Raghavan v. Union of India[vi], The Supreme Court held that National Awards are not subject to titles as per Article 18 and receiving a National Award was not a violation of equality under the Constitution.

RIGHT TO FREEDOM: (ART. 19-22)

  • Article 19: Protection of certain rights regarding freedom of speech, etc.

Article 19 guarantees to all citizens the six rights and they are as follows:

  1. Right to freedom of speech and expression.
  2. Right to assemble peaceably and without arms.
  3. Right to form associations or unions or co-operative societies.
  4. Right to move freely throughout the territory of India.
  5. Right to reside and settle in any part of the territory of India.
  6. Right to practice any profession or to carry on any occupation, trade or business.

The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of sovereignty and integrity of India.

In the case of Indian express news v. Union of India[vii], There cannot be any interference with the freedom of press in the name of public interest. The purpose of the press is to enhance public interest by publishing facts and opinions, without which a democratic electorate cannot take responsible decisions.

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  • Article 20: Protection in Respect of Conviction for Offences

Article 20 provides that no person shall be convicted for any offence except the violation of a law in force, no person shall be punished for the same offence more than once (Double Jeopardy), no person shall be compelled to be a witness against himself (Prohibition against Self Incrimination).

The Landmark judgment governing this doctrine came in the year 1953, in case of Kedar Nath v. State of West Bengal[viii], the court observed that, whenever an act is declared as a criminal offence and provides penalty for same by the legislature, it is always prospective in nature and can’t be implemented retrospectively to uphold what is being said under Article 20 (1).

  • Article 21: Protection of Life and Personal Liberty

Article 21 provides that, No person shall be deprived of his life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.

In Sunil Batra v. Delhi Administration[ix] the court held the “right to life” included the right to lead a healthy life so as to enjoy all faculties of the human body in their prime conditions. It would even include the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health.

  • Article 21A: Right to education (Added by 86th amendment)

It provides thatthe State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

  • Article 22: Protection against arrest and detention

Article 22 grants protection to persons who are arrested or detained. Detention is of two types – punitive and preventive. Punitive Detention is to punish a person for an offence committed by him after trial and conviction in a Court. Preventive means detention of a person without trial and conviction by a person for a past offence, but to prevent him from committing an offence in the near future. It includes:

  1. Right to be informed about the ground of arrest.
  2. Right to be defended by a lawyer of his own choice.
  3. Right to be produced before a magistrate within 24 hours.
  4. No detention beyond 24 hrs except by order of the magistrate.

No law providing for preventive detention shall authorize the detention of a person for a longer period than 3 months unless – an advisory board consisting of persons who are qualified to be appointed as judge of a High Court has reported before the expiration of the said period of 3 months that there is in its option sufficient cause for such detention. This right is not available to an enemy, an alien and a person arrested and detained under Preventive Detention.

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In the case of Joginder Kumar  v. State of U.P[x],  the court held that a detained person should know the cause of his detention and is entitled to let any third person know the location of his detention.

 RIGHT AGAINST EXPLOITATION (ARTICLES 23 – 24) 

  • Article 23: Prohibition of Traffic in human beings and forced labor

It prohibits traffic in human beings, beggar (forced labor) and other similar forms of forced labor Parliament has enacted the Immoral Traffic (Prevention) Act, 1956 and the Bonded Labor System (Abolition) Act 1976 to punish for such traffic.

  • Article 24: Prohibition of employment of children in Factories, etc.

It prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work.

RIGHT TO FREEDOM OF RELIGION: (ARTICLE 25 – 28)

  • Article 25: Freedom of conscience & free propagation, practice & profession of religion

Absolute freedom of an individual to mold his relation with god in whatever manner he likes. Further state is empowered by law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religion practice. It says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.

The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan[xi], held that the test to determine the question in deciding what is an integral part of a religion is whether it is regarded as integral by the community following that religion or not.

  • Article 26: Freedom to manage religious affairs

This article allows every religious denomination or a section of it to establish and maintain institutions for religious and charitable purposes and manage their religious affairs. They can also acquire and own movable and immovable properties and administer such properties in accordance with the law.

  • Article 27: Freedom from payment of taxes for promotion of any particular religion

It prohibits the state to impose tax proceeds of which are meant for payment of promotion or maintenance of any particular religion. It means that the state cannot raise a religious tax and also that the state cannot spend its secular taxes on any particular religion as it would go against its secular character.

  • Article 28: Freedom from attendance of religious

Educational institutions wholly maintained by state funds are prohibited from imparting religious instructions. However, an institution established by a trust but administered by the state can impart religious instructions. But in these institutions, no person can be compelled to attend these instructions.

SC verdict on S. R. Bommai v. Union of India[xii],Declared secularism at par with democracy & constitutes basic structure of the constitution which is beyond amending power of the parliament.

EDUCATIONAL AND CULTURAL RIGHTS: (ARTICLE 29-30)

  • Article 29: Protection of Interests of Minorities

Article 29 states that Minorities & everyone have right to conserve his culture, script & language and can establish educational institutions for the same. No citizen can be denied admission to any educational institution maintained by the state or receiving aid out of state fund on grounds of religion, race, cast or language only.

In Ravneet Kaur v. Christian Medical College, Ludhiana’s Case 1998[xiii], the Court held that a private institution receiving aid from the State cannot discriminate on grounds of religion, caste, race language or any of them.

  • Article 30: Right of Minorities to Establish and Administer Educational Institutions

Article 30grants rights to minorities, whether religious or linguistic. It provides that all minorities shall have the right to establish and administer educational institutions of their choice. The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. In granting aid, the State shall not discriminate against any educational institution managed by a minority.

In the case of D.A.V College, Bathinda v. State of Punjab & Ors[xiv],For the purpose of article 30(1) a community may constitute a minority based on language, even though they may not have a separate script; it would be enough if they have a separate spoken language.

ABOLITION OF RIGHT TO PROPERTY AND SAVING OF CERTAIN  LAWS: (ARTICLE 31,31A,31B,31C)

  • Article 31: Abolition of right to property

The Constitution (44th Amendment) Act, 1978 omitted Article 19(1) (f) (Right to acquire, held hold and dispose of property), and shifted the provision in Article 31 (no person shall be deprived of his property except by law) to another article viz. Article 300-A.The effect of this change is that the right to property is no more a fundamental right. Thus the Right to property though still a constitutional right is not a fundamental right. If this right is infringed the aggrieved person cannot access the Supreme Court directly under Article 32.

  • RIGHT TO CONSTITUTIONAL REMEDIES: (ARTICLE 32)

Article 32 is the very soul of the Constitution and the very heart of it. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. These writs are borrowed from English law where they are known as ‘prerogative writs’. The Supreme Court shall have the power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo warranto.

CONCLUSION

Every human being in this universe has some liberty which cannot be restraint by anyone. This is why fundamental rights have been written and given to the people for their enjoyment in this world.  If these have not been framed then no one could have lived freely in this world. Fundamental Rights shows about the democracy of the country that is India to provide freedom to all the citizens of the India and provides them all the rights that are required. The fundamental Rights are of huge importance that is why on the violation of Fundamental Rights Supreme Court can be approached directly.

(Author: Rajat Kumar, pursuing B.Com LLB from Rayat Bahra University, Mohali.)


[i]    AIR 1951 SC 318.

[ii]   AIR 1957 Raj 10

[iii]  AIR 1993 SC 477 

[iv]  AIR 1985 S.C. 1495

[v]   AIR 1958 Mys 84

[vi]  (1996) 1 SCC 361

[vii] 1985 2 SCC 434

[viii]1953 AIR 404

[ix]  AIR 1978 SC 1675

[x]   1994 AIR 1349

[xi]  1963 AIR 1638

[xii] 1994 AIR 1918

[xiii]AIR 1998 P H 1

[xiv]1971 AIR 1731