Fundamental Rights, enshrined in Part III, are arguably the most important feature of the Indian Constitution. This post explains all aspects of fundamental rights in India available to citizens as well as non-citizens.
Introduction to the Fundamental Rights in India
The Fundamental Rights are enumerated from Articles 12 to 35 in Part III of the Indian Constitution. They have been inspired from the Bill of Rights in the US Constitution.
They are termed ‘fundamental” since these rights are guaranteed by the Constitution against the arbitrary and authoritarian action of the state. They are also fundamental for the all-round development of the individuals.
There are 6 Fundamental Rights in the Indian Constitution:
- Right to equality (Articles 14-18)
- Right to freedom (Articles 19-22)
- Right against exploitation (Articles 23-24)
- Right to freedom of religion (Articles 25-28)
- Cultural and educational rights (Articles 29-30)
- Right to constitutional remedies (Article 32)
Originally there were seven fundamental rights in India. However the 7th fundamental right i.e. Right to property (Article 31) was removed from this list and made only a legal right by the 44th Amendment Act, 1978.
Features of Fundamental Rights in India
- The protection of some of the Fundamental Rights are available only to the citizens while the rest are available to all persons. Persons include citizens, foreigners or legal persons like corporations or companies.
- Fundamental Rights are not absolute. They come with reasonable restrictions and they strike a balance between individual rights and those of the society as a whole.
- Fundamental Rights are justiciable, implying an individual can seek legal remedy for the enforcement of his or her rights.
- In case of violation of Fundamental Rights, an aggrieved person can not only approach the High Court but also the Supreme Court directly to redress his or her grievance.
- They can be amended or repealed by the Parliament by a Constitutional amendment without altering the “Basic Structure” of the Constitution.
- They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
- Their application can be restricted in an area under the declaration of martial law or ‘military rule’.
Fundamental Rights at a Glance
|1. Right to equality (Articles 14-18)||(a) Equality before law and equal protection of laws (Article 14).|
(b) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).
(c) Equality of opportunity in matters of public employment (Article 16).
(d) Abolition of untouchability and prohibition of its practice (Article 17).
(e) Abolition of titles except military and academic (Article 18).
|2. Right to freedom (Articles 19–22)||(a) Protection of six rights regarding freedom of: (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession (Article 19).|
(b) Protection in respect of conviction for offences (Article 20).
(c) Protection of life and personal liberty (Article 21).
(d) Right to elementary education (Article 21A).
(e) Protection against arrest and detention in certain cases (Article 22).
|3. Right against exploitation(Articles 23–24)||(a) Prohibition of traffic in human beings and forced labour (Article 23).|
(b) Prohibition of employment of children in factories, etc.(Article 24).
|4. Right to freedom of religion(Article 25–28)||(a) Freedom of conscience and free profession, practice and propagation of religion (Article 25).|
(b) Freedom to manage religious affairs (Article 26).
(c) Freedom from payment of taxes for promotion of any religion (Article 27).
(d) Freedom from attending religious instruction or worship in certain educational institutions (Article 28).
|5. Cultural and educationalrights (Articles 29–30)||(a) Protection of language, script and culture of minorities (Article 29).|
(b) Right of minorities to establish and administer educational institutions (Article 30).
|6. Right to constitutional remedies (Article 32)||Right to move the Supreme Court for the enforcement of fundamental rights including the writs of (i) habeas corpus, (ii) mandamus, (iii)prohibition, (iv) certiorari, and (v) quo-warranto (Article 32).|
Fundamental Rights of Citizens and Foreigners
Certain Fundamental Rights are available to only Indian citizens while the rest are available to both, citizens as well as foreigners.
|Sr. No||FR available only to citizens||FR available to citizens and non-citizens (foreigners, except, enemy aliens)|
|1.||Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).||Equality before law and equal protection of laws (Article 14).|
|2.||Equality of opportunity in matters of public employment (Article 16).||Protection in respect of conviction for offences (Article 20).|
|3.||Protection of six rights regarding freedom of : (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession (Article 19).||Protection of life and personal liberty (Article 21).|
|4.||Protection of language, script and culture of minorities (Article 29).||Right to elementary education (Article 21A).|
|5.||Right of minorities to establish and administer educational institutions (Article 30).||Protection against arrest and detention in certain cases (Article 22).|
Prohibition of traffic in human beings and forced
labour (Article 23).
Prohibition of employment of children in factories
etc., (Article 24).
Freedom of conscience and free profession, practice and propagation of religion (Article 25).
Freedom to manage religious affairs (Article 26).
Freedom from payment of taxes for promotion of any
religion (Article 27).
Freedom from attending religious instruction or
worship in certain educational institutions (Article 28).
Also Read: Fundamental Duties in India
Fundamental Rights in Detail
Right to Equality
Article 14: Equality before law and equal protection of laws
Art. 14 states that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.
This right is available to citizens as well as non-citizens. The word ‘person’ includes legal person as well such as statutory corporations, companies, registered societies, or any other type of legal person.
However, the rule of equality before law is not absolute and is subject to constitutional and other exceptions. Some of these exceptions include:
- The President and Governor enjoy various immunities from civil and criminal proceedings while in office.
- Members of Parliament and state legislatures enjoy immunities in respect of proceedings of the house.
- The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from civil and criminal proceedings.
Article 15: Prohibition of Discrimination on Certain Grounds
Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
The word ‘only’ in this article implies that discrimination on grounds other than those mentioned is not prohibited.
This second provision of this article confers upon every citizen the right to (a) access shops, public restaurants, hotels and places of entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.
However there are certain exceptions to the general rule of non-discrimination. These are:
- The State is permitted to make any special provision for women and children. Example, reservation of seats in local bodies and free education to children.
- The State can make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. This includes reservation of fee concessions in public educational institutions and also admission to private educational institutions, whether aided or unaided.
Article 16: Equality of Opportunity in Public Employment
Article 16 provides for equality of opportunity to all citizens in matters of employment or appointment to any office under the State.
It states that no citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
However, there are certain exceptions to this general rule of equality of opportunity in public employment. These are:
- Parliament has the power to prescribe residence as a condition for certain employment or appointment.
- The State can provide for reservations in appointments or posts in favour of any backward class of citizens.
- A law can provide that the holder of an office related to a religious institution or a member of its governing body belong to the particular religion or denomination.
Article 17: Abolition of Untouchability
Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The article further states that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.
Although the term ‘untouchability’ has not been defined in the Constitution or in the Protection of Civil Rights Act, 155, the courts have interpreted the subject matter of Article 17 not its literal or grammatical sense but the ‘practice as it had developed historically in the country’.
It is to be noted that the members of the scheduled castes have been the victims of this vicious practice of untouchability for more than a thousand years and hence the need for this legal safeguard in the Constitution.
Article 18: Abolition of Titles
Article 18 abolishes titles and makes four provisions in that regard:
- It prohibits the state from conferring any title (except a military or academic distinction) on any body, whether a citizen or a foreigner.
- It prohibits a citizen of India from accepting any title from any foreign state.
- A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
- No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.
However, the Supreme Court has held that the National Awards, including, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri do not amount to ‘titles’ within the
meaning of Article 18 that prohibits only hereditary titles of nobility.
Additionally, it held that they should not be used as suffixes or prefixes to the names of awardees. Otherwise, the awardees should forfeit the awards.
Right to Freedom
Article 19: Protection of Six Rights
Article 19 guarantees to all citizens the six rights. These are:
(i) Right to freedom of speech and expression.
(ii) Right to assemble peaceably and without arms.
(iii) Right to form associations or unions or co-operative societies.10
(iv) Right to move freely throughout the territory of India.
(v) Right to reside and settle in any part of the territory of India.
(vi) Right to practice any profession or to carry on any occupation, trade or business.
Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
These six rights are protected against only state action and not private individuals. Moreover, these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc.
The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in the Article 19 itself and not on any other grounds.
Also note that the six rights guaranteed by Article 19 can be suspended only when a National Emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e. internal emergency).
Article 20: Protection in respect of Conviction for Offences
Article 20 grants protection against arbitrary and excessive punishment to an
accused person, whether citizen or foreigner or legal person like a company
or a corporation.
It contains three provisions in this regard:
- No ex-post-facto law: No person shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.
- No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
- No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.
The prohibition of conviction under an ex-post-facto law applies only to criminal laws and not civil or tax laws. The restriction on double jeopardy does not prohibit trial for the same offence more than once.
Article 21: Protection of Life and Personal Liberty
Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens.
The Supreme Court has held that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American expression ‘due process of law’.
The scope of Article 21 is very wide thanks to its broad interpretation by the Supreme Court.
Article 21A: Right to Education
Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine.
Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education.
This provision was added by the 86th Constitutional Amendment Act of. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’.
Article 22: Protection against Arrest and Detention
Article 22 grants protection to persons who are arrested or detained. Detention includes, both, punitive as well as preventive detention.
(a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
(i) Right to be informed of the grounds of arrest.
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24 hours, excluding the journey time.
(iv) Right to be released after 24 hours unless the magistrate authorises further detention.
These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
(b) The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following:
(i) The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.
(ii) The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.
(iii) The detenu should be afforded an opportunity to make a representation against the detention order.
Right Against Exploitation
Article 23: Prohibition of Traffic in Human Beings and Forced Labour
Article 23 prohibits traffic in human beings, begar (forced labour) and other similar forms of forced labour. Any contravention of this provision shall be an offence punishable in accordance with law. This right is available to both citizens and non-citizens. It protects the individual not only against the State but also against private persons.
The expression ‘traffic in human beings’ include (a) selling and buying of men, women and children like goods; (b) immoral traffic in women and children, including prostitution; (c) devadasis; and (d) slavery.
The term ‘forced labour’ means compelling a person to work against his will. The word ‘force’ includes not only physical or legal force but also force arising from the compulsion of economic circumstances, that is, working for less than the minimum wage.
However, the State or government is permitted to impose compulsory service for public purposes, as for example, military service or social service, for which it is not bound to pay.
Article 24: Prohibition of Child Labour
Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work.
The Child Labour (Prohibition and Regulation) Act, 1986, is the most important law in this direction. The Child Labour (Prohibition and Regulation) Amendment Act, 2016 prohibits the employment of children below 14 years in all occupations and processes.
Right to Freedom of Religion
Article 25: Freedom to Practice Own Religion
Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.
But, it does not include a right to convert another person to one’s own religion, i.e. forcible conversions. Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals).
Moreover, these rights are available to all persons—citizens as well as non-citizens. However, these rights are subject to public order, morality, health and other provisions relating to fundamental rights.
Article 26: Freedom to Manage Religious Affairs
According to Article 26, every religious denomination or any of its section shall have the following rights:
(a) Right to establish and maintain institu-tions for religious and charitable purposes;
(b) Right to manage its own affairs in matters of religion;
(c) Right to own and acquire movable and immovable property; and
(d) Right to administer such property in accordance with law.
Article 25 guarantees rights of individuals, while Article 26 guarantees rights of religious denominations or their sections.
Like the rights under Article 25, the rights under Article 26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights.
Article 27: Freedom from Taxation for Promotion of a Religion
Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
This implies that the taxes can be used for the promotion or maintenance of all religions. Further, this provision prohibits only levy of a tax and not a fee.
Article 28: Freedom from Attending Religious Instruction
Under Article 28, no religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution.
Further, no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to attend any religious instruction or worship in that institution without his consent.
Cultural and Educational Rights
Article 29: Protection of Interests of Minorities
Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. Further, 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, or language.
The first provision defends the entitlements of a group while the second provision guarantees the rights of a citizen as an individual irrespective of the group or community to which he belongs.
The protection of Article 29 extends to both religious minorities as well as linguistic minorities.
Article 30: Right of Minorities to Establish and Administer Educational Institutions
Article 30 grants the following rights to minorities, whether religious or linguistic:
(a) All minorities shall have the right to establish and administer educational institutions of their choice.
(b) The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them.
This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right
(c) In granting aid, the State shall not discriminate against any educational institution managed by a minority.
It is to be noted that Article 30 grants protection only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). The right under Article 30 also includes the right of a minority to impart education to its children in its own language.
Article 32: Right to Constitutional Remedies
Rights are meaningless if there is no mechanism to ensure their enforcement in case of violation. Article 32 provides such a mechanism to the citizens to approach the Supreme Court directly for the enforcement of their Fundamental Rights.
For this reason, Dr B.R Ambedkar called Article 32 as the most important article of the Constitution—‘an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’.
The Supreme Court has the power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
The operation of Article 32 can be suspended by a Presidential order during the operation of a National Emergency under Article 359.
Further, only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and so on.
Also Read: Writ Jurisdiction in India
Thus you have read the complete details of Fundamental Rights in India, including, the type, scope and Articles related to Fundamental Rights. In case of any questions use the comment box below.