Fundamental Rights in India

 Fundamental Rights (FRs) are known as cornerstone

of Indian constitution & mentioned in Part 3 of the
constitution.
 FRs prohibits unreasonable interference of the state &
prevents its executive & legislature to become
authoritarian >>> Hence put due limitations of state
power
 Observance of fundamental duties is essential for
having one’s FRs redressed in case of their violation
 Fundamental Rights V/S Legal Rights
 Legal rights are protected & enforced by ordinary law of
land whereas FRs are protected & guaranteed by written
constitution
 In violation of legal rights, one can file suit in subordinate
court or by writ application in High court whereas in
violation of FRs one can directly approach Supreme court
 Legal rights can be changed by ordinary process of
legislation whereas FRs cannot be amended without
amending the constitution itself (i.e. by special majority)
 FRs provides protection only against state action not
against a private individual except rights pertaining to
abolition of untouchability & rights against exploitation
 FRs are not absolute but qualified rights >>> Subject to
certain restrictions imposed by the state on the question of
national security, interest & general welfare of the society
>> But restrictions are checked by SC & HC”s, whether
restrictions are reasonable or not on the grounds of:

 Advancement of SC’s & ST’s

 Sovereignty & integrity of India
 Security of India
 Friendly relations with foreign states
 In interest of general public morality & public order

 FRs are justifiable & can be enforced in court of law but

state may deny some of the FRs to a class of people For ex –
Armed forces, Para-Military personnel, Police forces etc.
for national security & integrity
Judicial Review & FRs
 Judicial review is the power of SC & HC only to declare
a law unconstitutional & void if it is in inconsistent
with any of the provision of constitution to the extent
of inconsistency
 Judicial Review is power against both legislature as
well as executives
 States do not make laws which abridges the rights
mentioned in part 3 of the constitution & any law
made in contravention of this clause shall be void to
the extent of contraventions
Amendability of FRs
 SC verdict in Golaknath V/S state of Punjab
(1967) >> FRs has been given transcendental position
by constitution hence no authority functioning under
constitution including parliament has the power to
amend FRs

 In Keshavananda Bharati V/S state of

Kerala, 1973, SC held that parliament has the power to
amend any provision of the constitution including part
3, however parliament’s amending power subjects to
“Basic structure of the constitution“
Rule of Law
 Constitution is supreme law of land & all laws passed
by legislature must confirm to it
 No person is above law & all are subjected to ordinary
law without any distinction of rank or position
(Exception: President, Governor, Foreign diplomats &
ambassadors)
 No person can be punished or made to suffer except
for violation of law & any such violation must be
looked by ordinary legal laws in courts
 Natural Justice >> No person can be judge in his own
case; both sides must be heard, unbiased & impartial
justice
Six Fundamental Rights in India
 Article 14 – 18 Right to Equality

 Article 19 – 22 Right to Freedom

 Article 23 – 24 Right against Exploitation

 Article 25 – 28 Right to Freedom of Religion

 Article 29 – 30 Cultural & Education Rights

 Article 32 – 35 Right to Constitutional Remedies

Basic Facts About Fundamental
Rights
1-Source—FR are taken from the constitution of US.

2-These are justifiable in the court of law.

3-These are negative in nature.(prohibited state from

taking many action against the spirirt of FR).

4-These are not absolute rights available to indivdual.

Right to Equality
 Article 14: Equality before law & equal protection
of laws

 Equality before law (British origin) >> No man is above

law irrespective of his rank or position
 Equal protection of law (US origin) >> Among equals,
law should be equal & equally administered
 Exception: President, Governor, Ambassadors, Foreign
diplomats
Article 15: Right against
Discrimination
 No discrimination on the basis of cast, race, religion,
sex or place of birth only
 No discrimination w.r.t access of shops, hotels & public
places including bathing Ghats
 Empowers state to make special provisions for the
advancement of SC & ST (including their admission in
educational institutions >>> Public & private both)
 Empowers state to make special provisions for women
& children
Article 16: Equality of opportunity
 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 their 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
 Exception 2: Reservation of employment for SCs & STs
along with seats reserved in matter of promotion with
consequential seniority >> Unfilled vacancies to be carry
forward & not to lapse
 Person holding an office in connection with affairs of
religious or denominated institutions shall profess the
same religion or denomination
Article 17: Abolition of
untouchability
 Untouchability offence act, 1955 prescribes
punishment for practice of untouchability >> Act was
further amended & renamed as civil rights protection
act in 1976
 Under civil rights protection act laws were made more
stringent & enlarged to include “Insulting a member of
SC on grounds of untouchability, Preaching or
justifying untouchability on historical, philosophical
or religious grounds”.
 1 or 2 years imprisonment & disqualification for
election to any legislature
 Article 18: Abolition of titles
 Prohibits the state to confer titles to anyone citizen or non-
citizen >> Exception : Military & Academic distinction
 Prohibits a citizen of India from accepting any titles from
any foreign states
 A foreigner holding any office of profit or trust under the
state is not to accept any titles from foreign states without
consent of the president
 No person holding any office of profit or trust under the
state is to accept any gift, emolument or office from foreign
state without consent of the president
 Right to Freedom
 Article 19-1-A: Freedom of speech & expression
with no geographical limitations
 Right to express convictions or ideas by words,
printing, picture, banners etc.
 Right to publish & propagate views of others
 Freedom of silence
 Right against tapping of telephonic conversation
 Freedom of press
 Right to know about government activities
 Article 19-1-B: Freedom of Assembly
 Guarantees all citizens of India to right to assemble
peacefully & without arms but subjected to following
restrictions:
 Assembly must be peaceful
 Must be unarmed
 Further reasonable restrictions can be imposed
 Article 19-1-C: Freedom to form associations /
Unions / Co-operative societies
 Guarantees all citizens of India (Except Armed forces,
Police force, Military etc.) freedom to form
associations or unions or co-operative societies but
subjected to certain restrictions in interest of
sovereignty & integrity of public & state
 Does not confer the right to strike or declare a lock out
>> Means does not confer the right to bargain
 Article 19-1-D: Freedom of Movement
 Right to move freely throughout India (Subjected to
certain restrictions)

 Article 19-1-E: Freedom of Residence

 Right to reside or settle in any part of the country
temporary or permanent (Subjected to certain
restrictions)

 Article 19-1-G: Right to Trade & Occupation

 Right to practice any profession, trade or business
subjected to certain restrictions (Professions requiring
specific professional & technical qualifications)
Article 20: Protection in respect of
conviction for offences
 Retrospective Criminal Legislation / Ex Post Facto
 No person shall be convicted of any offence except for “violation of law
in force at the time of commission of act charged as offence, nor to be
subjected to a penalty greater than that which might have been
inflicted under law in force, at time of commission of offence”
 Double Jeopardy
 No person shall be prosecuted & punished for the same offence more
than once but only in respect of punishment inflicted by court of law or
judicial tribunal
 Does not immunize person from proceedings not before court of law
>> means can be punished under departmental proceedings for the
same offence & then may be prosecuted in court of law >> Can also be
inflicted for contempt of court along with criminal proceedings
 Prohibition against self-incrimination
 No person accused of any offence shall be compelled to be witness
against himself
 Article 21: Protection of Life & Personal Liberty
 No person shall be deprived of his life/personal liberty
except acc. to procedure made by law
 Article 21 put limitation upon powers of executive as
well as legislature & conferred to both citizen & non
citizen

Article 21 – A: Right to education (Added by 86th

amendment 2002) – Absolute right
 State shall pass free & compulsory education to
all children of age 6 to 14 years
 Only elementary education not higher education
 Remember Unnikrishnan Case
 Article 22: Protection against arrest & detention
 No person who is arrested shall be detained in custody
without being informed on which grounds
 Person arrested shall be brought before magistrate
within 24 hours of arrest
 Without authority of magistrate no person shall be
detained in custody more than said 24 hours
 Exception: Alien enemy & person arrested under
preventive detention
 Preventive detention (Detention without trial)
 Not to detain a person for what he has done but to
intercept him before he does it & prevent him from doing it
 No offence is proved nor a charge is formulated but such a
detention is purely on the basis of suspicion or reasonable
probability of impending commission
 Max detention can be only for 3 months; for more than 3
months it must obtain a report from advisory board (
Advisory board shall examine the statements & papers
from government & accused and will formulate whether
detention is justified or not
 Accused must have the earliest opportunity of making
representation against detention order
 Accused must be told grounds for his arrest except the facts
which are against public interest to disclose
 Some of the Preventive detention acts enacted by
parliament are NASA, TADA,POTA etc.
 Right against Exploitation
 Article 23: Prohibition of human trafficking & forced
labor
 Article 24: Prohibition of employment of children in
factories, mines or any other hazardous environment
under 14 years of age (Absolute right)*
Right to freedom of Religion
 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 like
 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
 Article 26: Freedom to manage religious affairs
 Subjects to public order, morality & health, every
religious denomination shall have the following rights:
 To establish & maintain institutions for religious &
charitable purposes
 To manage its own affairs in matters of religion
 To own & acquire movable or immovable property
 To administer such property in accordance with the
law (Limited right >> Subjected to regulatory power of
the state)
 Article 27: Freedom from taxes for promotion of any
particular religion

Article 28: Freedom from attending religious

instructions
 No religious instructions to be imparted in institutions
wholly maintained by the state
 No restrictions on religious instructions in institutions
established under any trust or endowment
 Religious instructions may be imparted in institutions
recognized by the state or receiving funds aid from the
state but an individual is not liable to attend such forcefully
 SC verdict on R. Bommai v/s Union of India >> Declared
secularism at par with democracy & constitutes basic
structure of the constitution which is beyond amending
power of the parliament.
Cultural & Educational Rights
Article 29: Protection of interest of minorities
 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 (No place)
Article 30: Right of minorities to
establish & administer educational
institutions
 All minorities whether based on religion or language
shall have the right to establish & administer
educational institutions of their choice
 States in granting aid to educational institutions shall
not discriminate against any educational institution on
grounds of management under minority (based on
religion or language)
Right to constitutional Remedies
Article—32
 Heart & soul of the constitution which makes supreme
court a guarantor & protector of all FRs
 Guarantees an individual a right to move to supreme
court by appropriate proceedings for enforcement of
FRs conferred under part 3 of the constitution
 SC is endowed with power to issue directions, orders or
writs, whichever is appropriate for enforcement of any
of the rights conferred by part 3 of the constitution
 FRs & Armed Forces
 Under article 33, parliament by law can restrict FRs
available to member of armed forces or forces charged with
maintenance of public order to oblige them to properly
discharge their duty
 Any law made under article 33 by parliament cannot be
challenged in court of law

 FRs & Martial Law

 Article 34 put restrictions on FRs when martial law is in
force
 Article 19 is automatically suspend
 Sentenced passed by highest officer as validated by martial
law is supreme
 FRs & Emergency Provisions
 Article 352
 FRs under article 19 are suspended by president in case of
national emergency on grounds of war or external aggression
 But only after when it is conveyed to president by parliament in
writing passed by 2/3rd of members present & voting

 Under article 359, President may also suspend the operations of

other FRs in case of national emergency

 44th amendment prohibits suspension of Article 20

(Protection w.r.t conviction of offences) & 21 (Protection of life &
personal liberty) even during national emergency
 President may by issuing a proclamation can restore FRs (Other
than of article 19) which were suspended under article 359, even
when national emergency is in force