Fundamental Rights: Harshada Gupta

Fundamental Rights

Author: Harshada Gupta

ISSN: 2582-3655

ABSTRACT

The aim & object of this research paper is to enunciate the true meaning of the Articles mentioned under the fundamental rights as propounded by our father of Indian Constitution ‘Dr. B.R.Ambedkar’.

The Constitution of India makes it compulsory for its Government to protect and promote freedom of its citizens, which is proven by including fundamental rights in Part 3 of our Constitution.

This paper deals with an introduction, sources of inspiration, features, classification, need, to whom & against whom it is available, importance, conclusion and suggestion.

INTRODUCTION

In every Democratic system of Government, there are some rights which are regarded as ‘fundamental’. They are so regarded because they are vitally necessary for the attainment by the individual of his full moral and spiritual stature. Without those rights, the individual’s moral and spiritual life would remain impeded, and he would not be able to develop his potential. Such are the rights that are embodied in PART 3 of the Constitution of India referred to as ‘FUNDAMENTAL RIGHTS’.

The inclusion of fundamental rights in the Constitution is for the purpose of preserving certain fundamental human rights which are not only protected by the State, but in which the State has no right to interfere.

“BOHMAN BEHRAM  v.  STATE OF BOMBAY”[1]

In this case, the court held that “the fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into question in considering the individual rights. They have been put there as a matter of ‘public policy’ and the ‘Doctrine of Waiver’ has no application to provisions of law that have been embodied as a matter of constitutional policy.

SOURCES OF INSPIRATION

The Chairman of the drafting committee DR. AMBEDKAR had said in this regard that –

As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution….”

First, the main political party, the Congress, had for been demanding these rights against the British rule. During the British rule, human rights were violated by the rules on a very wide scale. Therefore, the framers of the Constitution, many of whom had suffered confinement during the British regime, had a very positive attitude towards these rights.

Second, the Indian society is disintegrated into many religions, cultural and linguistic groups and it was necessary to declare fundamental rights to give to the people a sense of security and confidence.

The history of fundamental rights legally starts from ‘Magna Carta’ which was a list of rights of England in 1214 AD. This was followed by the ‘Bill of Rights’ in 1689 in which Englishmen were given certain civil and political rights that could not be taken away. Later on the French compiled the ‘Declaration of the rights of Man and of the Citizen’ after the French Revolution in 1789. 

The Constitution of USA has been the source of inspiration for the inclusion of fundamental rights in the Constitution. The original US Constitution did not contain any provision relating to fundamental rights, however, in the year 1791 the Bill of Rights was incorporated in the US Constitution in the form of 10 amendments, and thus, the Americans became the first to give the Bill of Rights a Constitutional status.

When the Indian Constitution was being framed the background for the incorporation of the Bill of Rights was already present. The framers took inspiration from this and incorporated a full chapter in the Constitution dealing with fundamental rights. But, the fundamental rights contained in Part 3 of the Constitution of India differ from the US Bill of Rights.

FEATURES

Following are the important features of the fundamental rights under the Indian Constitution. They are:-

  1. DIFFERENT FROM OTHER RIGHTS – Fundamental Rights are different from other ordinary legal rights. If a legal right is violated, the aggrieved person cannot directly approach the Supreme Court bypassing the lower courts. He or she has to first approach the lower court. But the scenario is different in case of fundamental rights. If a fundamental right is violated, the aggrieved person can directly approach the High Court (article 226) or the Supreme Court (article 32). Article 32 & 226 of the Indian Constitution, empowers an individual to directly go to the Supreme Court and the High Court, to seek remedial measures, if there fundamental rights are infringed.
  2. NOT ABSOLUTE RIGHTS – Fundamental Rights are not absolute rights. They have reasonable restrictions. This means they are subject to certain conditions which does not make them absolute. The State can impose reasonable limitations on these rights.
  3. JUSTICIABLE – Fundamental Rights are justiciable. This means that they are enforceable by law.
  4. FLEXIBLE NATURE – Fundamental Rights are flexible in nature. They can be amended by the Parliament by a constitutional amendment. But keeping in mind, that only if the amendment does not change the basic structure of the Constitution. These rights can also be suspended during a national emergency. But, the rights guaranteed under Article 20 (Protection in respect of Conviction for Offences) & Article 21 (Protection of Life & Personal Liberty) cannot be suspended. The application of these rights can also be restricted under martial law or military rule.

CLASSIFICATION OF FUNDAMENTAL RIGHTS

The fundamental rights are classified under 2 heads, namely:-

  1. General Provisions (Arts. 12 & 13)
  2. Particular Fundamental Rights (Arts. 14 to 35)

GENERAL PROVISIONS

  1. ARTICLE 12 : DEFINITION

In this Part, unless the context otherwise requires, “the State” includes-

  1. The Government of India,
  2. The Parliament of India,
  3. The Government of each of the States,
  4. The Legislature of each of the States,
  5. All local or other authorities within the territory of India or under the control of the Government of India.

R.D.SHETTY v. INTERNATIONAL AIRPORT AUTHORITY OF INDIA[2]

In this case, the court held that, the International Airport Authority is an instrumentality or agency of the Government, and therefore, falls within the definition of the “State”

ZEE TELEFILMS LIMITED v. UNION OF INDIA[3]

In this case, the question arose as to whether BCCI can be said to be a State for the purpose of Art.12, the Supreme Court held that BCCI is not financially, functionally, or administratively dominated by the Government nor is it under the control of the Government. It is therefore, not a State under Art.12.

  1. ARTICLE 13 : LAWS INCONSISTENT WITH OR IN DEROGATION OF THE FUNDAMENTAL RIGHTS
  • All laws in force in the territory of India immediately before the commencement of this Constitution, in so far, as they are inconsistent with the provisions of this Part, shall, to the extent, of such inconsistency, be void.
  • The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law made in contravention of this clause, shall, to the extent of the contravention, be void.

ABDUL KADER v. STATE OF MYSORE[4]

In this case, the court observed that, the inconsistent constitutional procedure laid down by a pre-constitutional act is not to be followed in respect of pending proceedings or in respect of new proceedings instituted in respect of pre-constitution rights and liabilities.

KESHAVN v. STATE OF BOMBAY[5]

In this case, the court observed that all laws in force at the commencement of the constitution which were inconsistent with the fundamental rights conferred by Part 3 of the Constitution became, to that extent, void.

PARTICULAR FUNDAMENTAL RIGHTS

The fundamental rights embodied in Arts. 14 to 35 can be grouped under the following heads, namely:-

  • RIGHT TO EQUALITY (ARTS 14 TO 18)
  • RIGHT TO FREEDOM (ART. 19)
  • PROTECTION AGAINST CONVICTION (ART. 20)
  • PROTECTION OF LIFE AND PERSONAL LIBERTY (ART. 21)
  • RIGHT TO EDUCATION (ART. 21A)
  • PROTECTION AGAINST ARREST AND DETENTION (ART. 22)
  • RIGHT AGAINST EXPLOITATION (ARTS. 23-24)
  • RIGHT TO FREEDOM OF RELIGION (ARTS. 25-28)
  • CULTURAL AND EDUCATIONAL RIGHTS (ARTS. 29-30)
  • RIGHT TO PROPERTY (ART.31) [DELETED]
  • RIGHT TO CONSTITUTIONAL REMEDIES (ARTS. 32-33)
  1. RIGHT TO EQUALITY
  1. Article 14 : Equality before law

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

SHIVSHANKAR v. MP STATE GOVERNMENT[6]

In this case, the court observed that both the expressions ‘equality before the law’ and ‘equal protection of the laws’ aims at establishing equality of legal status for all, but there is some difference between them. The former is somewhat a negative concept, implying absence of any special privilege in favor of individuals, while the latter is a more positive concept, implying equality of treatment in equal circumstances.

  • Article 15 : Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them
  • 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 regards to-
  • Access to shops, public restaurants, hotels, and places of public entertainment; or
  • 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.
  • Nothing in this article shall, prevent the State from making any special provisions for women and children.
  • Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
  • Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

NAIN SUKH DAS v. STATE OF UTTAR PRADESH[7]

In this case, the Supreme Court held that any law providing for an election to local bodies on the basis of separate electorates for members of different religious communities would be void under article 15(1), unless such a law is protected by article 15(4).

  • Article 16 : Equality of opportunity in matters of public employment
  • There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
  • No citizen shall on grounds of only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under that State.
  • Nothing in this article shall, prevent Parliament from making nay 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 s to residence within that State or Union territory prior to such employment or appointment.
  •  Nothing in this article shall prevent the State from making any provisions for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the State.

(4A) nothing in this article shall prevent the State from making any provisions for reservations in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favor of the Scheduled Caste and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provisions for reservation made under clause(4) or clause(4A) as a separate class of vacancies to be filled up in any succeeding year or years and such classes of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on a total number of vacancies of that year.

  •  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.

JAINIKIRAMAN v. STATE OF ANDHRA PRADESH[8]

In this case, the court held that, an order removing a temporary government servant that he was not born in Andhra Pradesh was held to be violative of Article 16(2) which does not make any distinction between temporary and permanent posts.

  • Article 17 : Abolition of untouchability

“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 the law.

  • Article 18 : Abolition of Titles
  • 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, except 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
  1. Article 19 : Protection of certain rights regarding freedom of speech, etc
  2. All citizens shall have the right
  3. To freedom of speech and expression
  4. To assemble peaceably and without arms
  5. To form associations or unions or co-operative societies
  6. To move freely throughout the territory of India
  7. To reside and settle in any part of the territory of India
  8. To acquire, hold and dispose of property [deleted]
  9. To practice any profession or to carry on any occupation, trade or business.

Diagram 3.1 : Summary of Article 19

RIGHTSRESTRICTIONSCASES
FREEDOM OF SPEECH AND EXPRESSIONREASONABLE RESTRICTIONS IN THE INTEREST OF :- Sovereignity and integrity of IndaSecurity of the StateFriendly relations with foreign StatesPublic orderDecencyMorality Or in relation to:-\ Contempt of courtDefamation, andIncitement of an offenceJAMUNA PRASAD V. LACCHIRAM RAJNI KANT V. STATE UNION OF INDIA V. HINDUSTAN DEVELOPMENT CORP NARENDRA KUMAR V. UNION OF INDIA CHINTAMANRAO V. STATE OF MP  
FREEDOM TO ASSEMBLE PEACEABLY AND WITHOUR ARMSREASONABLE RESTRICTIONS IN THE INTEREST OF :- Sovereignity and integrity of IndiaPublic orderGOPAL CHARAN V. DAITARY NANDY RAMESHWAR V. STATE STATE V. MANGALA
FREEDOM TO FORM ASSOCIATIONS OR UNIONSREASONABLE RESTRICTIONS IN THE INTEREST OF :- Sovereignity and integrity of IndiaPublic orderMoralitySTATE OF MADRAS V. ROW RAMKRISHNAIAH V. THE PRESIDENT, DISTRICT BOARD, NELLORE
FREEDOM TO MOVE FREELY THROUGH OUT THE TERRITORY OF INDIA-FREEDOM TO RESIDE AND SETTLE IN ANY PART OF THE TERRITORY OF INDIAREASONABLE RESTRICTION:- in the interest of the general public, orfor the protection of the interests of any  Scheduled Tribe.GOPALAN V. STATE OF MADRAS DR. KHARE V. STATE STATE OF MP V. BALDEO PRASAD
FREEDOM TO ACQUIRE, HOLD AND DISPOSE OF PROPERTY (DELETED)
FREEDOM TO PRACTISE ANY PROFESSION, OCCUPATION, TRADE, OR BUSINESSREASONABLE RESTRICTIONS:- in the interest of the general public,prescribing professional or technical qualificationBOMBAY HAWKERS UNION V. BMC STATE OF KERALA V. JOSEPH ANTONY
  • Article 20 : Protection in respect of Conviction for Offences
  • No person shall be convicted of any offence except for violation of 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 – Protection against ex post facto laws
  •  No person shall be prosecuted and punished for the same offence more than once – Protection against double jeopardy
  •  No person accused of any offence shall be compelled to be a witness against himself – Protection against self incrimination.

THOMAS DAS v. STATE OF PUNJAB[9]

In this case, the Supreme Court held that, in order to claim protection of article 20(2), it was necessary to prove 3 things:- (i) that there was a previous prosecution, (ii) that as a result of this the accused was punished, and (iii) that the punishment was for the same offence.

  • Article 21 : Protection of life and Personal Liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

GOPALAN v. STATE OF MADRAS[10]

In this case, the Supreme Court considered the scope of Art.21 in detail. It rejected the argument that Art.21 contained the American doctrine of due process. Moreover, the case laid down that the term liberty is qualified by the adjective personal. Hence, the fundamental right guaranteed by Art.21 is a right to personal liberty, which is completely different from rights guaranteed by Art. 19. The court, therefore, held that a law with reference to Art.21 cannot be challenged on the ground that it violates Art.19.

MANEKA GANDHI v. UNION OF INDIA[11]

In this case, where the court specifically overruled the majority view in Gopalan’s case and laid down that Art.21 is controlled by Art.19. the court observed that, if there is a law that prescribes a procedure for depriving a person of personal liberty, there may be no infringement of Art.21; but such a law can still be challenged on the grounds that it takes away any fundamental right under Art.19 of the Constitution.

  • ARTICLE 21(A) : RIGHT TO EDUCATION

The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine.

The 86th Amendment Act, 2002, has made ‘Right to Education’ a fundamental right.

UNNI KRISHAN v. STATE OF UTTAR PRADESH[12]

In this case, the Supreme Court had observed that education up to the age of 14 years was envisaged as a fundamental right under the Constitution of India.

  • ARTICLE 22 : PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES
  • No person who is arrested shall be detained in custody, without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied, the right to consult, and to be defended by, a legal practitioner of his choice.
  • Every person who is arrested, and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of the magistrate.
  • Nothing in clauses (1) and (2) shall apply:
  • To any person who for the time being is an enemy alien; or
  • To any person who is arrested or detained under any law providing for preventive detention;
  • No law providing for preventive detention shall authorize the detention of a person for a longer period than 3 months unless:
  • An Advisory Board consisting of a person who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of 3 months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
  • Such person is detained in accordance with the provisions of any law made by Parliament under sub-clause (a) and (b) of clause (7).
  • When any person is detained in pursuance of an order made under any law, providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
  • Nothing in clause (5) shall require the authority making such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
  • Parliament may by law prescribe:
  • The circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than 3 months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (b) of clause (4);
  • The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
  • The procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

GANPATI v. NAFISUL HUSSAIN[13]

In this case, applying Art. 22(2), the Supreme Court has held that if a person is arrested under a warrant issued by the Speaker of the State Legislative Assembly, and is not produced before a Magistrate within 24 hours of his arrest, it be violation of Art.22(2), and the person should be ordered to be released.

  • RIGHT AGAINST EXPLOITATION
  1. Article 23 : Prohibition of traffic in human beings and forced labour
  2. Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
  3. 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 24 : Prohibition of employment of children in factories, etc.

No child below the age of 14 years shall be employed to work in any factory, or mine, or engaged in any other hazardous employment.

SHAMA v. STATE OF UTTAR PRADESH[14]

In this case, the expression “traffic in human beings” refers to traffic in women for immoral purposes. The Suppression of Immoral Traffic in Women and Girls Act, was passed by Parliament in 1956. The Allahabad High Court has held that such a law is valid and is not inconsistent with the fundamental right Art.19(g).

  • RIGHT TO FREEDOM OF RELIGION
  1. Article 25 : Freedom of conscience and free profession, practice, and propagation of religion.
  2. 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.
  3. Nothing in this article shall affect the operation of any existing law or prevent the State from making any:
  4. Regulating or restricting any, economic, financial, political, or other secular activity which may be associated with religious practice;
  5. 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.

EXPLANATION 1: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

EXPLANATION 2: In sub-clause (b) of clause (2) the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains, or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

  • Article 26 : Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
  • To establish and maintain institutions for religious and charitable purposes;
  • To manage its own affairs in matters of religion;
  • To own and acquire movable and immovable property; and
  • To administer such property in accordance with law.
  • Article 27 : Freedom as to payment of taxes for promotion of any particular religion

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.

  • Article 28 : Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
  • No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
  • Nothing in clause (1) shall apply to 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.
  • 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 there to unless such person or, if such person is a minor, his guardian has given his consent thereto.

QUARESHI v. THE STATE[15]

In this case, an interesting question arose whether prohibiting cow-slaughter affected the religious right of the Mahomedans. It was argued on behalf of the petitioner that the sacrifice of a cow on the Bakri-Id day was a part of the Muslim religion and also approved by the Kuran. However, the Supreme Court rejected this contention on the ground that satisfactory evidence to support it had not been produced.

  1. CULTURAL AND EDUCATIONAL RIGHTS
  1. Article 29 : Protection of interests of minorities
  2. 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
  3. 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.

STATE OF BOMBAY v. BOMBAY EDUCATION SOCIETY[16]

In this case, this article does not take away the right of an institute to refuse admission or to expel a student on a valid ground, like indiscipline, provided the discretion is not abused.

  • Article 30 : Right of minorities to establish and administer educational institutions.
  • All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

[1](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.

SHRI KRISHNA v. GUJARAT UNIVERSITY[17]

In this case, the Gujarat High Court had to consider the validity of an Act which prohibited the use of English as a medium of instruction. The court held that the Act violated Arts. 29 and 30 of the Constitution. The University of Gujarat went in appeal to the Supreme Court, but lost the appeal.

  • RIGHT TO PROPERTY
  1. Article 31 : REPEALED
  • Article 31A : Saving of laws providing for acquisition of estates, etc.
  • Article 31B : Validation of certain Acts and Regulations
  • Article 31C : Saving of laws giving effect to directive principles
  • Article 31D : Saving of laws in respect of anti-national activities (DELETED)
  • RIGHT TO CONSTITUTIONAL REMEDIES
  1. Article 32 : Remedies for enforcement of rights conferred by this Part
  2. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
  3.  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.
  4. Without prejudice to the powers conferred on the Supreme Court by clauses (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).
  5. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

CHARLES SHOBRAJ v. SUPERINTENDANT, CENTRAIL JAIL[18]

In this case, Art.32 enshrines a very valuable right. As observed by the Supreme Court, if a prisoner’s fundamental right is flouted or legislative protection is ignored, the Supreme Court’s writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law.

  • Article 32(a) : [REPEALED]
  • Article 33 : Power of Parliament to modify the rights conferred by this Part in their application to forces, etc.
  • Article 34 : Restriction on rights conferred by this Part while marital law is in force in any area
  • Article 35 : Legislation to give effect to the provisions of this Part.

NEED FOR FUNDAMENTAL RIGHTS IN INDIA

Fundamental Rights were deemed important to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government. They are limitations upon all the powers of the Government, legislative as well as executive and they are essential for the preservation of public and private rights.

DARYAO v. STATE OF UTTAR PRADESH[19]

In this case, the Supreme Court observed that, “the fundamental rights are intended not only to protect individual’s rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution…”

GOLAK NATH v. STATE OF PUNJAB[20]

In this case, the Supreme Court held that, Part 3 of the Constitution of India guarantees certain fundamental rights because they are considered necessary for the development of human personality. These rights enable a man to chalk out his own life in the manner he likes best.

MANEKA GANDHI v. UNION OF INDIA[21]

In this case, the Supreme Court observed that, fundamental rights are calculated to protect the dignity of the individual and creates conditions in which every human being can develop his personality to the fullest extent.  

FUNDAMENTAL RIGHTS

“TO WHOM AVAILABLE”

Part 3 of the Indian Constitution deals with fundamental rights under its articles 12 to 35. The fundamental rights in Articles:-

  • Article 15 – Prohibition of discrimination on grounds only of religion, race, caste, sex, or place of birth
  • Article 16 – Equality of opportunity in matters of public employment
  • Article 19 – Right to Freedom
  • Article 29 – Protection of Interests of Minorities
  • Article 30 – Rights of minorities to establish and administer educational institutions.

Are available only to citizens, while the rights guaranteed by other Articles are available to the citizens and non-citizens alike.

FUNDAMENTAL RIGHTS

“AGAINST WHOM AVAILABLE”

Most of the fundamental rights are available against the State only but some of them are also available against the private individuals. The fundamental rights guaranteed under these Articles are against the State, namely:-

  • Article 14 – Equality before the law
  • Article 15(1) – Discrimination on the grounds of religion, race, etc
  • Article 16 – Equality of opportunity in matters of public employment
  • Article 18(1) – No title, not being a military or academic distinction, shall be conferred by the State
  • Article 19 – Right to Freedom
  • Article 20 – Protection in respect of conviction for offences
  • Article 21 – Protection of life and personal liberty
  • Article 22 – Protection against arrest and detention in certain cases
  • Article 25 – Freedom of conscience and free profession of religion
  • Article 26 –  Freedom to manage religious affairs
  • Article 27 – Freedom from payment of taxes for promotion of any particular religion
  • Article 28 – Freedom to attend religious instructions
  • Article 29 – Protection of interests of minorities
  • Article 30 – Rights of minorities to establish and administer educational institutions.

SHAMDASANI v. CENTRAL BANK OF INDIA[22]

In this case, the Supreme Court observed that, most fundamental rights are available only against the State and its instrumentalities are not against private bodies.

While the fundamental rights guaranteed in these Articles are available against the State as well as against the private individuals, namely:-

  • Article 15(2) – Religious or racial disabilities in connection with access to shops, hotels, wells, tanks, etc
  • Article 17 – Abolition of untouchability
  • Article 23(1) – Traffic in human beings and beggar other similar forms of forced labour are prohibited
  • Article 24 – Prohibition of employment of children in factories, etc

IMPORTANCE OF FUNDAMENTAL RIGHTS IN INDIA

The importance of fundamental rights in our Indian Constitution are as follows:-

  • It protects the liberty and freedom of the citizens against any invasion by the State.
  • It prevents the establishment of the authoritarian & dictatorial rule in the country.
  • It is an essential for all-round development of the individual.
  • It upholds the equality & dignity of all individuals and the nation’s unity.
  • It establishes the Government of Law and not of man.
  • It imposes negative obligations on the Government not to encroach individual liberty.
  • It builds self-confidence among the people by providing equal opportunities & equal protection of law.
  • It protects the interest of the minorities.
  • It constitutes the basis of the democratic system in the country.
  • It strengthens the secular factor of the Indian state.

The Supreme Court explained the importance of the fundamental rights with almost equal force & clarity as to the American Judges.

GOPALAN v. STATE OF MADRAS[23]

In this case, CJ Kania has pointed out that “Fundamental Rights are express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation.”

CONCLUSION

The fundamental rights enshrined in Part 3 of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. The fundamental rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for proper and harmonious development of personality.

They are enforceable by the courts, subject to certain restrictions. Violation of these rights, result in punishments as prescribed in the Indian Penal Code, subject to the discretion of the judiciary. The fundamental rights are considered to be the backbone of the Indian Constitution. The fundamental rights embedded in our Constitution are the source of all rights.

Since Independence, the Fundamental Rights have expanded greatly to include several other rights from time to time.  Based on this, the Government of India, enacted several other laws, such as, ‘Right to Information’, ‘Right to freedom of Press’, ‘Right to Education’, etc.

The most important aspect of the fundamental rights is that it gives the judiciary clear criteria as to how the regulation of relations between the citizens and Government will take place. The judiciary has a significant role to play in protecting and upholding the fundamental rights of the citizens under the Constitution of India. The fundamental rights may have flaws but it does not provide more protection to the citizens of the nation than most of the flaws.


[1] (1955 1 SCR 613)

[2] (AIR 1979 SCC 489)

[3] (AIR 2005 SC 2677)

[4] (AIR 1951 MYS 72)

[5] (AIR 1951 SC 228)

[6] (ILR 1851 NAG 656)

[7] (AIR 1953 SC 384)

[8] (AIR 1959 AP 185)

[9] (AIR 1959 SC 375)

[10] (AIR 1950 SC 115)

[11] (AIR 1978 SC 597)

[12] (1993 1 SCC 645)

[13] (AIR 1954 SC 36)

[14] (AIR 1959 ALL. 57)

[15] (AIR 1958 SC 731)

[16] (1955 1 SCR 568)

[17] (AIR 1962 GUJ 86)

[18] (AIR 1978 SC 1514)

[19] (AIR 1961 SC 564)

[20] (AIR 1967 SC 1643))

[21] (1978 1 SCC 248)

[22] (AIR 1952 SC 59)

[23] (AIR 1950 SC 27)

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