fundamental rights

people in democractic conutries enjoy certain rights, which are protected by judicial system of the country concerned. Their violation, even by the State, is not allowed by the courts. India respects the rights of the people, which are listed in our Constitution, under the heading “Fundamental Rights”. In lesson, a mention has been made of the Fundamental Rights as one of the salient features of the Constitution. In this lesson, we will discuss in detail various Fundamental Rights which are incorporated in chapler III of the Constitution.

Meaning And Importance Of Fundamental Rights

The rights, which are enshrined in the Constitution, are called ‘Fundamental Rights’. These rights ensure the fullest physical, mental and moral development of every citizen. They include those basic freedoms and conditions which alone can make life worth living. Fundamental Rights generate a feeling of security amongst the minorities in the country. They establish the framework of ‘democratic legitimacy’ for the rule of the majority. No democracy can function in the absence of basic rights such as freedom of speech and expression. 

Fundamental Rights provide standards of conduct, citizenship, justice and fair play. They serve as a check on the government. Various social, religious, economic and political problems in our country make Fundamental Rights important. In our Constitution, Fundamental Rights are enumerated in Part III from Article 14 to 32. These rights are justiciable.

 Justiciable: Justiciable means that if these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or High Courts for the protection of his/her Fundamental Rights. Our Constitution does not permit the legislature and the executive to curb these rights either by law or by an executive order. The Supreme Court or the High Courts can set aside any law that is found to be infringing or abridging the Fundamental Rights.

 You will read about it in detail in the lesson on ‘Judiciary’. Some of the Fundamental Rights are also enjoyed by foreigners, for example, the Right to Equality before Law and Right to Freedom of Religion are enjoyed by both i.e. citizens as well as foreigners. The Fundamental Rights though justiciable are not absolute. The Constitution empowers the government to impose certain restrictions on the enjoyment of our rights in the interest of public good.

 Seven Fundamental Rights were enshrined in the Constitution of India. However the Right to Property was removed from the list of Fundamental Rights by the 44th Amendment Act of the Constitution in the year 1976. Since then, it has been made a legal right. There are now six Fundamental Rights.

 The Fundamental Rights are: -                        

• Right to equality (Article 14-18)
• Right to freedom (Article 19-22)
• Right against exploitation (Article 23-24)
• Right to freedom of religion (Articles 25-28)
• Cultural & educational rights (Articles 29-30)
• Right to constitutional remedies (Article 32).

Recently by the 86th Amendment Act, the Right to Education has been included in the list of Fundamental Rights as part of the Right to Freedom by adding Article 21(A). We will now study these rights one by one.

'Right To Equality (Article 14-18)

Right to Equality means that all citizens enjoy equal privileges and opportunities. It protects the citizens against any discrimination by the State on the basis of religion, caste, race, sex, or place of birth. Right to Equality includes five types of equalities. 

Equality Before Law (Art-14) 

According to the Constitution, “The State shall not deny to any person equality before law or equal protection of laws within the territory of India”.

 ‘Equality before law’ means that no person is above law and all are equal before law, every individual has equal access to the courts. ‘Equal protection of laws’ means that if two persons belonging to two different communities commit the same crime, both of them will get the same punishment.

No Discrimnation on Grounds of Religion, Race, Caste, Sex, Place of Birth or any of them (Art-15)

No citizen shall be denied access to shops, restaurants and places of public entertainment. Neither shall any one be denied the use of wells, tanks, bathing ghats, roads etc. maintained wholly or partly out of State funds. However, the State is empowered to make special provisions for women, children and for the uplift of Scheduled Castes, Scheduled Tribes and other backward classes (OBC’s). The State can reserve seats for these categories in educational institutions, grant fee concessions or arrange special coaching classes.

Equality Of Opportunity In Matters Of Public Employment (Art-16)

Our Constitution guarantees equality of opportunity in matters relating to employment or appointment to public services to all citizens. There shall be no discrimination on the basis of religion, race, caste, sex, place of birth or residence in matters relating to employment in public services. Merit will be the basis of employment. However, certain limitations have been provided to the enjoyment of these rights.

Abolition of Untouchability (Art-17)

The Constitution abolishes untouchability and its practice in any form is forbidden.

 Action highlighted  are considered as offences when committed on the grounds of untouchability

refusing admission to any person to the public institutions;

 preventing any person from worshipping in place of public worship; 

insulting a member of Scheduled Caste on the grounds of untouchability;

 preaching untouchability directly or indirectly. 

Abolition of Titles(Art-18)

All titles national or foreign which create artificial distinctions in social status amongst the people have been abolished. This provision has been included in the Constitution to do away with the titles like ‘Rai Sahib’, ‘Rai Bahadur’ have been conferred by the British on a few Indians as a reward for their effective co-operation to the colonial regime. The practice of conferring titles like this is against the doctrine of equality before law. To recognise the meritorious service rendered by individual citizens to the country or mankind, the President of India can confer civil and military awards on those individuals for their services and achievements such as; Bharat Ratna, Padma Vibhushan, Padam Sri, Param Veer Chakra, Veer Chakra etc., but these cannot be used on ‘titles’.

 Right To Freedom(Art-19-22)

The Constitution guarantees the following six Fundamental Freedoms: 

(i) Freedom of speech and expression. 

(ii) Freedom to assemble peacefully without arms. 

(iii) Freedom to form associations or unions. 

(iv) Freedom to move freely throughout the territory of India

(v) Freedom to reside and settle in any part of the territory of India. 

(vi) Freedom to practise any profession or to carry on any occupation, trade or business. 

Protection in Respect of Conviction for An Offence(Art-20)

This Constitutional provision assures protection against arbitrary arrest and excessive punishment to any person who is alleged to have committed an offence. No person shall be punished except for the violation of law which is in force when the crime was committed. An accused cannot be compelled to be a witness against himself/herself. 

No person shall be punished for the same offence more than once. 

Article 21 deals with Protection of life and personal liberty.

The Constitution lays down that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. It guarantees that life or personal liberty shall not be taken away without the sanction of law. It ensures that no person can be punished or imprisoned merely at the whims of some authority. He/she may be punished only for the violation of the law. 

Right to Education(Art-21A)

By the 86th Amendment Act of the Constitution a new article 21-A has been added after Article 21. By this Amendment Act, Right to Education has been made a Fundamental Right and has been deleted from the list of Directive Principles of State Policy. According to it, “The State shall provide free and compulsory education to all children of the age of six to fourteen in such a manner as the State may by law determine”. It further states that it is the responsibility of the parent or guardian to provide opportunities for education to their child or ward between the age of six to fourteen years.

Prevention against Arbitrary Arrest and Detention(Art-22)

Our Constitution guarantees certain rights to the arrested person. As per the provision, no person can be arrested and/or be detained in custody without being informed of the grounds for detention. He /she has the right to consult and be defended by a lawyer of his/her choice. The accused has to be produced before the nearest magistrate within a period of twenty-four hours of arrest. These safeguards however are not available to foreigners as well as to those citizens detained under Preventive Detention Act.

Preventive Detention: When the State feels that a person is likely to commit crime or is a threat to the security of the State, he/she may be detained without trial for a limited period. However, no person can be kept under detention for more than three months until permitted by an Advisory Board consisting of persons who are qualified to be appointed as judges of the High Courts. Such a board is presided over by a sitting judge of a High Court. 

Right against Explotation(Art-23-24)

Article 23 deals with the prohibition of traffic in human beings and forced labor.
Article 24 deals with prohibition of employment of children in factories, etc.

Right to Freedom of Religion(Art-25-28)

 deals with freedom of conscience and free profession, practice, and propagation of religion(Art-25)

(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 Hindus1 . 

Explanation I. - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion

deals with freedom to manage religious affairs(Art-26)

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.

Freedom as to payment of taxes for promotion of any particular religion(Art-27)

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.

Freedom as to attendance at religious instruction or religious worship in certain educational institutions(Art-28)

(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 recognised 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 minor, his guardian has given his consent thereto.

 Protection of interests of minorities(Art-29)

(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.
(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.

Right of minorities to establish and administer educational institutions(Art-30)

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(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.

Right to constitutional remedies (Article 32).

(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 rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution