Fundamental Rights in India

Fundamental Rights (FRs) are known as cornerstone of Indian constitution & mentioned in Part 3 of the constitution. They 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

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: Right to 6 democratic freedoms

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) – Absolute right

• State shall pass free & compulsory education to all children of age 6 to 14 years
• Only elementary education not higher education

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, COFEPOSA, PITNDPSA

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

• 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 2/3^rd 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

Rights outside Part 3 of constitution

Article 300 A

• No person shall be deprived of his property except by authority of law (No writ petition for this)
• Right to property was removed from Fundamental right & transferred to legal rights by 44th amendment

Article 326

• Elections to the house of people & to legislative assemblies of the states should be on the basis of universal adult suffrage

Exception of 44th amendment for classes who still enjoy right to property

• If the property acquired belongs to an educational institution established & administered by minority, state must offer full market value as compensation
• If states seeks to acquire land cultivated by the owner himself & such land which does not exceed statuary ceiling, then state must offer full market value as compensation.