Fundamental Rights

The Fundamental Rights (FRs), enshrined in Part III of the Constitution (Article 12-35) ensure that the basic rights and civil liberties of the citizens of India are guaranteed. These rights are supreme and no law in the country can violate these rights. These rights are the most fundamental in nature and ensure all-round development of an individual. They protect basic freedoms such as the Right to Equality, Right to Freedom, Right to Freedom of Religion, Rights Against Exploitation, Rights of Minorities etc. Along with providing these rights, the constitution also provides a mechanism for their enforcement by way of Right to Constitutional Remedies in case they are violated by the Executive.

The Part III of the Constitution is also referred to as the Magna Carta of India. It draws inspiration from the United States’ Bill of Rights. A bill of rights is provided in the Constitution of most countries so that rights of individuals are protected. The Motilal Nehru committee (Nehru Report) had demanded a bill of rights as far back as in 1928. Hence, it was only logical that extensive rights were enshrined in the Constitution by the founders of India to protect rights which we were earlier denied by the British Colonial Powers.

At the commencement of the Constitution, Part III consisted of seven Fundamental Rights. However, the Right to Property (Article 31) was repealed from the Constitution by way of the 44th Constitutional Amendment Act, 1978. Therefore, Part III at present constitutes only six Fundamental Rights. These rights are inviolable, i.e., any law that is inconsistent or in derogation of any of the Fundamental rights shall be void Fundamental Rights form the cornerstone of individual liberties, democratic principles, and social justice.

The need for Fundamental Rights: can be understood since they help in the following:

• Promoting political democracy
• Safeguarding individual liberties against state invasion
• Fostering all-round development of individuals
• Preventing authoritarian and dictatorial tendencies
• Acting as a bulwark against the tyranny of the executive

• Ordinary rights may be changed by the legislature by ordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself.
• Some of them are available only to the citizens (Articles 15, 16, 19, 29, and 30) while others are available to all persons.
• They are not absolute but qualified, and thus the state can impose reasonable restrictions on them
• Restrictions must be placed by enacting a law and they should not be arbitrary.
• They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21
• Their application to the members of armed forces, paramilitary forces, police forces, intelligence agencies can also be restricted
• Available against the state mostly, but in some cases there is horizontal application e.g. untouchability is banned under Article 17 even by private individuals.
• Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons e.g. reservations.
• They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated
• Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained

• Right to Equality (Articles 14-18):
  • Provides for equality of all (Article 14), no matter their status, caste, race, religion, sex or place of birth.
  • It also prohibits discrimination in education (Article 15) and employment (Article 16) opportunities for all citizens of India.
  • There are also provisions for abolition of untouchability (Article 17) and abolition of titles (Article 18) so that no one is perceived to be over the other because of their historical titles like that of a Maharaja etc.
• Right to Freedom (Articles 19-22):
  • Article 19 protects six Fundamental Freedoms which include Freedom of Speech & Expression, Freedom of Assembly, Freedom of Association, Freedom of Movement, Freedom of Residence and Freedom of Profession.
  • Protections are provided from unfair criminal prosecution (Article 20) and rights for accused (Article 22).
  • Article 21 protects life and liberty of all and has been expanded significantly by the Supreme Court by including various rights like right to decent environment, right to livelihood, right to Privacy, right to shelter, right to health, right to travel abroad, right to speedy trial, right to free legal aid etc.
  • Right to Education (Article 21A) was added in 2002 by the 86th Amendment Act entitling students from age 6-14 with free education.
• Right against Exploitation (Articles 23-24)
  • Article 23 prohibits forced labour, slavery, prostitution and trafficking of human beings.
  • Article 24 protects children by banning their employment in factories and mines.
• Right to Freedom of Religion (Articles 25-28)
  • Article 25 not just provides individuals freedom of Conscience but also the ability to freely practice, profess and propagate a religion of your choice. It however does not meant that you have the right to convert another person to one’s own religion
  • Article 26 provides collective rights for religious freedom to maintain and establish institutions and acquire property by religious groups.
  • Further, it ensures that State does not mandate/ impose any religion on anyone as no taxes can be mandated for promotion of religion (Article 27) and no government institution can force religious instruction/ education on anyone (Article 28)
• Cultural and Educational Rights (Articles 29-30)
  • Minorities are protected under the Constituion of India against majoritarian rule by protection of their Language, Script and Culture under Article 29.
  • Article 30 allows religious and linguistic minorities to establish and administer educational institutions.
• Right to Constitutional Remedies (Article 32): Dr. Ambedkar called it the ‘the heart and soul of the Constitution’ as it gives everyone the right to move the Supreme Court for the Enforcement of Fundamental Rights. Supreme Court can issue powerful Writs/ Directions to government, executive and lower judicial bodies to protect Fundamental Rights given in Part III.

Right to Property was deleted from Fundamental Rights however it was put in section 300A of the Constitution. Hence, this right is available to all people, not just citizens of India. But now it is just a legal right and not a Fundamental Right.

Fundamental Rights given in Part III of the Constitution ensure the dignity and equality of individuals and protect them from the tyranny of the State as well as majoritarianism. The Fundamental Rights therefore ensure that an individual can rise from the status of a subject to that of a ‘citizen’. The fundamental rights are specific mandates derived from the similar human rights principles enshrined in the Universal Declaration of Human Rights, 1948. Apart from the Judiciary, other Commissions have also comeup to protect fundamental rights like the National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes, National Commission on Scheduled Tribes, National Human Rights Commission, National Commission of Safai Karamcharis etc. They oversee implementation and redress greivances of the aggrieved citizens.

It is also important to remember that all rights come with a corresponding obligation to respect other’s rights. Hence, individuals also need to perform their duties so that rights are secured. Hence, the Constitution of India also enshrines Fundamental Duties in Article 51A.