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FUNDAMENTAL RIGHTS
The Fundamental Rights has been
mentioned in the part III of the
Constitution of India and articles 12-35
deals with it. The concept of Fundamental
Rights has been borrowed from the
Constitution of USA.
At the time of making of the there were 7
Fundamental Rights but after the 44 th
Amendment Act 1978 Right to Property
was deleted from the Constitution.
1. Right to Equality
2. Right to Freedom
3. Right against Exploitation
4. Right to freedom of Religion
5. Cultural and Educational Rights
6. Right to Property (Deleted by 44 th
Amendment Act 1978)
7. Right to Constitutional Remedies
Nature of Fundamental Rights
(Article 12-13)
12. Definition. -
In this Part, unless the context otherwise
requires, "the State" includes the
Government and Parliament of India and
the Government and the Legislature of
each of the States and all local or other
authorities within the territory of India or
under the control of the Government of
India.
13. Laws inconsistent with or in
derogation of the fundamental
rights-
(1) all laws in force in the territory of
India immediately before the
commencement of this Constitution, in so
far as they are inconsistent with the
provisions of this Part, shall, to the extent
of such inconsistency, be void.
(2) The State shall not make any law
which takes away or abridges the rights
conferred by this Part and any law made
in contravention of this clause shall, to
the extent of the contravention, be void.
(4) Nothing in this article shall apply to
any amendment of this Constitution
made under article 368.
Right to Equality (Article 14-18)
14. Equality before law
The State shall not deny to any person
equality before the law or the equal
protection of the laws within the territory
of India.
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15. Prohibition of discrimination on
grounds of religion, race, caste, sex
or place of birth
(1) The State shall not discriminate
against any citizen on grounds only of
religion, race, caste, sex, and place of
birth or any of them.
(2) No citizen shall, on grounds only of
religion, race, caste, sex, place of birth or
any of them, be subject to any disability,
liability, restriction or condition.
(3) Nothing in this article shall prevent
the State from making any special
provision for women and children.
16. Equality of opportunity in
matters of public employment
(1) There shall be equality of opportunity
for all citizens in matters relating to
employment or appointment to any office
under the State.
(2) No citizen shall, on grounds only of
religion, race, caste, sex, descent, place
of birth, residence or any of them, be
ineligible for, or discriminated against in
respect of, any employment or office
under the State.
17. Abolition of Untouchability
"Untouchability" is abolished and its
practice in any form is forbidden. The
enforcement of any disability rising out of
"Untouchability" shall be an offence
punishable in accordance with law.
18. Abolition of titles
(1) No title, not being a military or
academic distinction, shall be conferred
by the State.
(2) No citizen of India shall accept any
title from any foreign State.
(3) No person who is not a citizen of India
shall, while he holds any office of profit or
trust under the State, accept without the
consent of the President any title from
any foreign State.
(4) No person holding any office of profit
or trust under the state shall, without the
consent of the President, accept any
present, emolument, or office of any kind
from or under any foreign State.
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Right to Freedom (Article 19-22)
19. Protection of certain rights
regarding freedom of speech, etc.
(1) All citizens shall have the right-
(a) To freedom of speech and
expression;
(b) To assemble peaceably and without
arms;
(c) To form associations or unions;
(d) To move freely throughout the
territory of India;
(e) To reside and settle in any part of
the territory of India
(f) To practice any profession, or to
carry on any occupation, trade or
business
20. Protection in respect of
conviction for offences
(1) No person shall be convicted of any
offence except for violation of a law in
force at the time of the commission of the
Act charged as an offence, nor be
subjected to a penalty greater than that
which might have been inflicted under the
law in force at the time of the commission
of the offence.
(2) No person shall be prosecuted and
punished for the same offence more than
once.
(3) No person accused of any offence
shall be compelled to be a witness against
himself.
21. Protection of life and personal
liberty
No person shall be deprived of his life or
personal liberty except according to
procedure established by law.
21(A) Right to education
Every child has the Right to free and
compulsory education of the age group 6-
14 years.
22. Protection against arrest and
detention in certain cases
(1) No person who is arrested shall be
detained in custody without being
informed, as soon as possible the grounds
for such arrest nor shall he be denied the
right to consult, and to be defended by, a
legal practitioner of his choice.
(2) Every person who is arrested and
detained in custody shall be produced
before the nearest magistrate within a
period of twenty-four hours of such arrest
excluding the time necessary for the
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journey from the place of arrest to the
court of the magistrate and no such
person shall be detained in custody
beyond the said period without the
authority of a magistrate.
(3) No law providing for preventive
detention shall authorize the detention of
a person for a longer period than three
months
Right against Exploitation (Article
23-24)
23. Prohibition of traffic in human
beings and forced labour
(1) Traffic in human beings and beggar
and other similar forms of forced labour
are prohibited and any contravention of
this provision shall be an offence
punishable in accordance with law.
(2) Nothing in this article shall prevent
the State from imposing compulsory
service for public purposes, and in
imposing such service the State shall not
make any discrimination on grounds only
of religion, race, caste or class or any of
them.
24. Prohibition of employment of
children in factories etc.
No child below the age of fourteen years
shall be employed to work in any factory
or mine or engaged in any other
hazardous employment.
Right to freedom of Religion (Article
25-28)
25. Freedom of conscience and free
profession, practice and propagation
of religion
(1) Subject to public order, morality and
health and to the other provisions of this
Part, all persons are equally entitled to
freedom of conscience and the right
freely to profess, practice and propagate
religion.
(2) Nothing in this article shall affect the
operation of any existing law or prevent
the State from making any law-
(a) Regulating or restricting any
economic, financial, political or other
secular activity which may be associated
with religious practice;
(b) Providing for social welfare and
reform or the throwing open of Hindu
religious institutions of a public character
to all classes and sections of Hindus.
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26. Freedom to manage religious affairs
Subject to public order, morality and
health, every religious denomination or
any section thereof shall have the right-
(a) To establish and maintain institutions
for religious and charitable purposes;
(b) To manage its own affairs in matters
of religion;
(c) To own and acquire movable and
immovable property; and
(d) To administer such property in
accordance with law.
27. Freedom as to payment of taxes for
promotion of any particular religion
No person shall be compelled to pay any
taxes, the proceeds of which are
specifically appropriated in payment of
expenses for the promotion or
maintenance of any particular religion or
religious denomination.
28. Freedom as to attendance at
religious instruction or religious
worship in certain educational
institutions
(1) No religious instruction shall be
provided in any educational institution
wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an
educational institution which is
administered by the State but has been
established under any endowment or
trust which requires that religious
instruction shall be imparted in such
institution.
(3) No person attending any educational
institution recognized by the State or
receiving aid out of State funds shall be
required to take part in any religious
instruction that may be imparted in such
institution or to attend any religious
worship that may be conducted in such
institution or in any premises attached
thereto unless such person or, if such
person is a minor, his guardian has given
his consent thereto.
Cultural and Educational Rights
(Article 29-30)
29. Protection of interests of
minorities
(1) Any section of the citizens residing in
the territory of India or any part thereof
having a distinct language, script or
culture of its own shall have the right to
conserve the same.
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(2) No citizen shall be denied admission
into any educational institution
maintained by the State or receiving aid
out of State funds on grounds only of
religion, race, caste, language or any of
them.
30. Right of minorities to establish
and administer educational
institutions
(1) All minorities, whether based on
religion or language, shall have the right
to establish and administer educational
institutions of their choice.
(2) The State shall not, in granting aid to
educational institutions, discriminate
against any educational institution on the
ground that it is under the management
of a minority, whether based on religion
or language.
31. Right to Property
It has been deleted from the Constitution
by the 44th Amendment Act 1978 and
now it has been a legal right under article
300(A)
Right to Constitutional Remedies
(Article 32-35)
Dr. B.R. Ambedkar said- “It is the heart
and soul of the Constitution
32. Remedies for enforcement of
rights conferred by this Part
(1) The right to move the Supreme Court
by appropriate proceedings for the
enforcement of the rights conferred by
this Part is guaranteed.
(2) The Supreme Court shall have power
to issue directions or orders or writs
including writs in the nature of Habeas
Corpus, Mandamus, Prohibition, Quo
Warranto and Certiorari, whichever may
be appropriate, for the enforcement of
any of the fundamental rights.
WRITS—TYPES AND SCOPE
The Supreme Court and the high courts
can issue the writs of habeas corpus,
mandamus, prohibition, certiorariand
quo-warranto. Further, the Parliament
(under Article 32) can empower any other
court to issue these writs. Since no such
provision has been made so far, only the
Supreme Court and the high courts can
issue the writs and not any other court.
Before 1950, only the High Courts of
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Calcutta, Bombay and Madras had the
power to issue the writs. Article 226 now
empowers all the high courts to issue the
writs.
Habeas Corpus
It is a Latin term which literally means ‘to
have the body of’. It is an order issued by
the court to a person who has detained
another person, to produce the body of
the latter before it. The court then
examines the cause and legality of
detention. It would set the detained
person free, if the detention is found to
be illegal. Thus, this writ is a bulwark of
individual liberty against arbitrary
detention.
The writ of habeas corpus can be issued
against both public authorities as well as
private individuals. The writ, on the other
hand, is not issued where the (a)
detention is lawful, (b) the proceeding is
for contempt of a legislature or a court,
(c) detention is by a competent court, and
(d) detention is outside the jurisdiction of
the court.
Mandamus
It literally means ‘we command’. It is a
command issued by the court to a public
official asking him to perform his official
duties that he has failed or refused to
perform. It can also be issued against any
public body, a corporation, an inferior
court, a tribunal or government for the
same purpose.
The writ of mandamus cannot be issued
(a) against a private individual or body;
(b) to enforce departmental instruction
that does not possess statutory force; (c)
when the duty is discretionary and not
mandatory; (d) to enforce a contractual
obligation; (e) against the president of
India or the state governors; and (f)
against the chief justice of a high court
acting in judicial capacity.
Prohibition
Literally, it means ‘to forbid’. It is issued
by a higher court to a lower court or
tribunal to prevent the latter from
exceeding its jurisdiction or usurping a
jurisdiction that it does not possess.
Thus, unlike mandamus that directs
activity, the prohibition directs inactivity.
The writ of prohibition can be issued only
against judicial and quasi- judicial
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authorities. It is not available against
administrative authorities, legislative
bodies, and private individuals or bodies.
Certiorari
In the literal sense, it means ‘to be
certified’ or ‘to be informed’. It is issued
by a higher court to a lower court or
tribunal either to transfer a case pending
with the latter to itself or to squash the
order of the latter in a case. It is issued
on the grounds of excess of jurisdiction or
lack of jurisdiction or error of law.
Thus, unlike prohibition, which is only
preventive, certiorari is both preventive
as well as curative.
Previously, the writ of certiorari could be
issued only against judicial and quasi-
judicial authorities and not against
administrative authories. However, in
1991, the Supreme Court ruled that the
certiorari can be issued even against
administrative authorities affecting rights
of individuals.
Like prohibition, certiorari is also not
available against legislative bodies and
private individuals or bodies.
Quo-Warranto
In the literal sense, it means ‘by what
authority or warrant’. It is issued by the
court to enquire into the legality of claim
of a person to a public office.
Hence, it prevents illegal usurpation of
public office by a person.
The writ can be issued only in case of a
substantive public office of a
permanent character created by a statute
or by the Constitution. It cannot be issued
in cases of ministerial office or private
office.
Unlike the other four writs, this can be
sought by any interested person and not
necessarily by the aggrieved person.
ARMED FORCES AND FUNDAMENTAL
RIGHTS
Article 33 empowers the Parliament to
restrict or abrogate the fundamental
rights of the members of armed forces,
para-military forces, police forces,
intelligence agencies and analogous
forces. The objective of this provision is
to ensure the proper discharge of their
duties and the maintenance of discipline
among them.
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The power to make laws under Article 33
is conferred only on Parliament and not
on state legislatures. Any such law made
by Parliament cannot be challenged in
any court on the ground of contravention
of any of the fundamental rights.
Accordingly, the Parliament has enacted
the Army Act (1950), the Navy Act
(1950), the Air Force Act (1950), the
Police Forces (Restriction of Rights) Act,
1966, the Border Security Force Act and
so on. These impose restrictions on their
freedom of speech, right to form
associations, right to be members of
trade unions or political associations,
right to communicate with the press,
right to attend public meetings or
demonstrations, etc.
The expression ‘members of the armed
forces’ also covers such employees of the
armed forces as barbers, carpenters,
mechanics, cooks, chowkidars,
bootmakers, tailors who are non-
combatants.
A parliamentary law enacted under Article
33 can also exclude the court martials
(tribunals established under the military
law) from the writ jurisdiction of the
Supreme Court and the high courts, so far
as the enforcement of Fundamental
Rights is concerned.
Suspension of the Fundamental
Right
Under the Article 352 of the Indian
Constitution during the proclamation of
the National Emergency all the
fundamental rights mentioned under
Article 19 gets suspended.
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Article 20 and 21 are known as the
absolute fundamental rights and cannot
get suspended in any circumstances by
the 44th Amendment Act 1978.
As regards with the suspension of any or
all other Fundamental Rights the
Constitution of India further empowers
the President to issue a separate
proclamation under Article 359.
Fundamental Rights for foreigners
The Fundamental Rights guaranteed by
Articles 14,20,21, 21A, 22, 23, 24, 25,
26, 27 and 28 are available to foreigners.
• Equality before law and equal
protection of laws (Article 14).
• Protection in respect of conviction for
offences (Article 20).
• Protection of life and personal liberty
(Article 21).
• Right to elementary education
(Article 21A).
• Protection against arrest and
detention in certain cases (Article
22).
• Prohibition of traffic in human beings
and forced labour (Article 23).
• Prohibition of employment of children
in factories etc., (Article 24).
• Freedom of conscience and free
profession, practice and propagation
of religion (Article 25).
• Freedom to manage religious affairs
(Article 26).
• Freedom from payment of taxes for
promotion of any religion (Article
27).
• Freedom from attending religious
instruction or worship in certain
educational institutions (Article 28).
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