INTRODUCTION
In the Constitution of India, Fundamental rights have been mentioned in part III under
Articles 12 to 35. Framers of the Constitution borrowed this from the Constitution of USA
(i.e., Bill of Rights). Part III of the Indian Constitution is also known as Magna Carta of
India.
The origin of the concept of Fundamental Rights, which are also known as Natural Rights or
Human Rights or Basic Rights or Inalienable Rights, is based on the theory of Natural Law.
This theory states that there are certain rights which are provided by God to all individuals
since their birth and cannot be taken away by anyone except God. The inclusion of a chapter
on Fundamental Rights in the Constitution of India is in accordance with the trend of modern
democratic thought. The declaration of Fundamental Rights in the Constitution thus serves
the purpose of reminding the Government in power to respect those rights and limiting the
range of activity of the State in appropriate directions.
The Fundamental Rights in our constitution are more elaborated than those found in the
Constitution of any other country in the world, including that of the USA. They are
guaranteed by the Constitution without any discrimination. They are often titled the most
sacred if not the most important part of the constitution.
HOW DID FUNDAMENTAL RIGHTS FIND THEIR WAY TO THE
INDIAN CONSTITUTION?
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
declarations of 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, was definitely in favor 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
Directive Principles) social, economic and political justice for every member of the
community. That they have succeeded in this testimony of an ardent observer of the Indian
Constitution.
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THE FUNDAMENTAL RIGHTS
Originally, there were seven fundamental rights in the Constitution of India, but in the 44th
Amendment Act, 1978, Right to Property(earlierarticle31) remained no more a Fundamental
Right and became a legal right under Article 300A. So as of now, there are six fundamental
rights in the Constitution. They are:
Right to equality (Articles 14-18)
Right to freedom (Article 19-22)
Right against exploitation (Article 23-24)
Right to freedom of religion (Article 25-28)
Cultural and educational rights (Article 29-30)
Right to constitutional remedies (Article 32)
Essentially, the Fundamental Rights commence from Article 14 whereas Article 12 contains
the definition of State, as Fundamental Rights are only available against the State and Article
the essence of Article 13 is that any law which abridges any Fundamental Right is null and
void.
ARTICLE 14
The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth.
Equality is for the equals, that is, those who are also in the same situation are entitled to equal
treatment. The guarantee of equality does not imply that the same rules should apply to all
persons despite differences in circumstances and conditions. It is essential that the
classification must be based on an intelligible differentia and that this in turn must have a
rational relation with the object sought to be achieved.
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ARTICLE 15
1. The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, 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 with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment;
or (b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the general
public
3. Nothing in this article shall prevent the State from making any special provision for
women and children
4. Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 15 coordinates that the State will not victimize any national on grounds just of
religion, race, standing, sex, and place of birth or any of them. Article 15 (2) applies to both
States and private actions, while Article 15 (1) refers only to the obligation of States. With
regard to Reservation as provided under this Article, the Apex Court has repeatedly held that
Reservation shall not exceed 50%.
ARTICLE 16
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 or,
any employment or office under the State
3. Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory,
any requirement as to residence within that State or Union territory prior to such
employment or appointment
4. Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any backward class of citizens
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which, in the opinion of the State, is not adequately represented in the services
under the State
5. Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a
person professing a particular religion or belonging to a particular denomination.
Equality in issues of public work Article 16 of the constitution sets out that the State can't
victimize anybody in the issues of employment. Although, there are a few exemptions. The
Parliament may sanction a law expressing those specific occupations must be filled by
candidates who are domiciled in the zone. This might be intended for posts that require
information of the territory and dialect of the zone. The State may also reserve posts for
members of backward classes, scheduled castes or scheduled tribes which are not adequately
represented in the services under the State to bring up the weaker sections of the society.
Additionally, there a law might be passed which requires that the holder of an office of any
religious establishment will likewise be a man proclaiming that specific religion.
ARTICLE 17
Untouchability is abolished and its practice in any form is forbidden. The enforcement of
any disability arising out of untouchability shall be an offence punishable in accordance
with law.
Article 17 is viewed as one of the most punctual appearances of India's exertion towards
bringing social changes. It abolishes practice of untouchability in all forms. Pursuant to this,
Parliament had enacted Untouchability Offence Act 1955 which made the offence bailable
and non-cognizable.
ARTICLE 18
No title, not being a military or academic distinction, shall be conferred by the State No
citizen of India shall accept any title from any foreign State 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 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 Right to
Freedom.
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The Article prohibits the conferment of titles. Military and academic distinctions are
exempted from the prohibition, prohibits a citizen of India from accepting any title from a
foreign state. It as well provides that a non-citizen who holds any office of profit or trust
under the state shall not accept without the consent of the president, any title from any
foreign state. Moreover, it provides that no person- holding any office of profit or trust under
the state, shall, without the consent of the president, accept any present or emoluments or
office of any kind from or under any foreign state.
ARTICLE 19
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; and
f) To practice any profession, or to carry on any occupation, trade or business.
2. Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause in the
interests of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence
3. Nothing in sub clause (b) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in
the interests of the sovereignty and integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by the said sub clause
4. Nothing in sub clause (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in
the interests of the sovereignty and integrity of India or public order or morality,
reasonable restrictions on the exercise of the right conferred by the said sub clause
5. Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, reasonable restrictions on the exercise of any of the rights conferred by
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the said sub clauses either in the interests of the general public or for the protection
of the interests of any Scheduled Tribe
6. Nothing in sub clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in
the interests of the general public, reasonable restrictions on the exercise of the
right conferred by the said sub clause, and, in particular, nothing in the said sub
clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,
i. the professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business, or
ii. the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.
Article 19 guarantees freedom of various forms available to all the citizens of the nation. It
also states the various exceptions to these Freedoms as to when it can be curtailed by the
State. Thus, it is not absolute and the exercise of freedom would depend upon the exceptions
whether or not it falls within the same.
ARTICLE 20
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.
This article protects the rights of the accused persons and it cannot be suspended during
emergency as provided under Article 359. Here persons includes both citizen and non-
citizens. The protection is available only in the criminal proceedings. It curtails the state and
union legislation from enacting the laws which would interfere with the rights of the person
who has been convicted of criminal offence. Article 20 is divided into 3 clauses.
1. Article 20(1) prohibits ‘ex post facto law’. An ex post facto law is one that declares
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someone's action to be criminal only after it was committed. It means the law cannot
punish the acts done prior to its existence. An individual cannot be punished
retrospectively.
2. Article 20(2) prohibits double jeopardy. Double jeopardy simply means double
punishment. The constitution prohibits multiple proceedings and punishment for a
same mistake.
3. Article 20(3) prohibits self-incrimination. Self-incrimination means exposing oneself
by making a statement by means of duress. No person shall be compelled to be a
witness against himself as he is deemed to be innocent until proven guilty.
ARTICLE 21
No person shall be deprived of his life or personal liberty except according to procedure
established by law.
Article 21 is certainly one of the most important provision in India. This right has been
provided against the state only. At present, it has various inclusions and is not merely limited
to life and personal liberty. Some significant inclusions under Article 21 include – Right to
live with dignity, Right to livelihood, Right to shelter, Right to health, Right to clean
environment, Right to know etc.
ARTICLE 21A
The 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.
The Indian Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the
Constitution to provide free and compulsory education of all children in the age group of six
to fourteen years as a Fundamental Right. Later in 2009, The Right of Children to Free and
Compulsory Education (RTE) Act was enacted with the object to provide full time
elementary education to every child.
ARTICLE 22
Article 22 deals with Protection Against Arrest and Detention. It grants protection to persons
who are arrested or detained. Detention is of two types, namely, punitive and preventive.
Punitive detention is to punish a person for an offense committed by him after a trial and
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conviction in a court. Preventive Detention means detention of a person without trial and
conviction by a court. Purpose being, not to punish a person for a past offense but to prevent
him from committing an offense in the near future.
Every citizen of India the Right to be informed of the grounds of arrest, right to consult and
be defended by a legal practitioner, right to be presented before a Magistrate within 24 hours
of arrest. Although, this protection is not available to a person detained under preventive
detention laws. It also states that preventive detention cannot continue for more than 3
months, except sufficient reasons provided by an Advisory Board and that the reasons for
detention should be conveyed to the accused.
ARTICLE 23
1. Traffic in human beings and begar 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.
Article 23 deals with the prohibition of human trafficking and forced labor. Human
trafficking means illegal trading of human beings for the purpose of commercial sexual
exploitation, prostitution and forced labor. Article 23 prohibits all such activities and has
been strengthened by various landmark cases.
ARTICLE 24
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.
The provision prohibits child labour. The Apex Court has repeatedly held Construction works
and projects as hazardous works and child labour shall be restricted.
ARTICLE 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.
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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.
This article upholds the spirit of secularism. Even though it guarantees the freedom to follow
and to propagate religion yet it is not absolute and this freedom comes with a responsibility to
ensure that the public order, morality and health are not compromised in the process.
ARTICLE 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.
The rights conferred by Article 26 are subject to the limitation as prescribed under Article 26
of the Constitution and not subject to any other provision of Part 3 of the Constitution. The
right guaranteed by Article 25 is an individual right while right guaranteed by Article 26 is
the right of an organized body like the religious denomination. Every religious denomination
or organization enjoys complete freedom in the matters of rites and ceremonies essential
according to the tenets of the religion they hold. A religious denomination also has the right
to acquire and own property and to administer such property in accordance with law.
ARTICLE 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.
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The Article emphasizes the secular character of the State. The public money collected by way
of tax can’t be spent by the State for the promotion of any particular religion. The reason for
the same is that freedom of religion guaranteed by the Constitution both to individual and
groups, it is against the policy of the Constitution to pay out of public funds any money for
the promotion or maintenance of the religious denomination. It is pertinent to comprehend
here that the Article prohibits levying of tax and not fee as the latter is valid.
ARTICLE 28
1. No religion 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.
It has been provided that in the Institutions wholly maintained by the state no religious
instructions can be imparted. In the institutions recognized by the state or receiving aid out of
state funds, religious instructions may be imparted only with the consent of the individuals. In
the institutions administered by the State but established under any trust or endowment there
is no restriction on religious instructions.
ARTICLE 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.
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The question as to who has minority status, would be determined on the basis of the
demographic composition of States i.e. in proportion of their position in the population in
different States not on all India basis. Although, commonly article 29(1) is assumed to relate
to minorities, its scope is not necessarily so confined, as it is available to “any section of
citizens resident in the territory of India”.
ARTICLE 30
1. All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
A. 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.
The right under article 30 is not absolute. State has the right to regulate the administration or
religious institutions. Any person be it non-minority in other place can administer and run
such institution.
ARTICLE 31
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 clause (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).
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4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.
It is true that a declaration of fundamental right is meaningless unless there is effective
machinery for the enforcement of the rights. It is remedy which makes the right real. If there
is no remedy there is no right at all. It was, therefore, in the fitness of the things that our
Constitution-makers having incorporated a long list of fundamental rights have also provided
for an effective remedy for the enforcement of these rights under article 32 of the
Constitution. It has been repeatedly held by the Apex Court that Judicial review under articles
32 and 226 is a basic feature of the Constitution beyond the pale of amend ability.
IMPORTANCE OF FUNDAMENTAL RIGHT IN TODAY’S SCENARIO
Imagine, you are denied a seat in any regular college, or for no reason, you got arrested, or
you are restricted from the right to profess, practice or propagate your religion, or you
couldn't get a job because you belong to a particular caste or religion. Further, imagine that
the State makes a law to take your life away the very next day. How would you feel? Was
this unjust and unequal?
The Fundamental Rights are guaranteed to Indian citizens to safeguard them against such
practices. They are meant to protect us from such oppressive practices and also act as a
means to redress the violation of Fundamental Rights (The Right to Constitutional
Remedies). Without such laws in place, India could never be termed as democratic country.
Most of the Fundamental Rights are nothing more than common and reasonable sense. They
do not require wide Interpretation and uncountable case laws to comprehend them, rather
prudent sense plays a huge role in their comprehension. Every single human needs few basic
rights in order to live with human dignity.
Fundamental rights are the package of those basic rights. There are certain more rights as
well like legal rights, constitutional rights, and etc. but none can be compared to Fundamental
Rights. Fundamental Rights constitute the back bone of the nation. Though Fundamental
Rights are not absolute and are subject to reasonable limitations but in turn those reasonable
restrictions are subject to judicial review.
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WHY ARE FUNDAMENTAL RIGHTS NOT BEING ENFORCED?
There are various reasons as to why our Fundamental Rights are not being enforced today.
Although the Constituent Assembly gave us a lot of rights which have been interpreted very
widely by the Apex Court in various cases, but the actual enforcement remains a question.
Hereby a few reasons as to non-enforcement of fundamental rights are listed :-
1. Lack of Knowledge
2. Huge Pendency
3. Lack of Resources
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