Fundamental Rights of the Indian Constitution

Fundamental Rights

• Overview and Origin

  • Fundamental Rights are enshrined in Part III of the Constitution, spanning Articles 12 to 35, inspired by the USA’s Bill of Rights.
  • Part III is often called the Magna Carta of India due to its comprehensive and justiciable list of rights, more elaborate than any other constitution worldwide, including that of the USA.
  • These rights are guaranteed to all persons without discrimination, promoting equality, dignity, public interest, and national unity.
  • The primary purpose is to uphold political democracy by preventing authoritarian rule and protecting people’s liberties from state infringement, ensuring “a government of laws and not of men”.
  • They are termed “fundamental” as they are constitutionally guaranteed and essential for the holistic development (material, intellectual, moral, spiritual) of individuals.

• Original List of Fundamental Rights

  • Originally, seven rights were listed:
    • (i) Right to equality (Articles 14–18)
    • (ii) Right to freedom (Articles 19–22)
    • (iii) Right against exploitation (Articles 23–24)
    • (iv) Right to freedom of religion (Articles 25–28)
    • (v) Cultural and educational rights (Articles 29–30)
    • (vi) Right to property (Article 31)
    • (vii) Right to constitutional remedies (Article 32)
  • However, the Right to Property was removed as a Fundamental Right by the 44th Amendment Act, 1978 and is now a legal right under Article 300-A in Part XII.
  • Thus, currently, there are six Fundamental Rights.

• Features of Fundamental Rights

  • They possess several key characteristics:
    • (i) Some rights apply only to citizens; others extend to all persons including foreigners and legal entities.
    • (ii) They are qualified rights — reasonable restrictions may be imposed by the state, with courts deciding their validity, balancing individual liberty and social control.
    • (iii) Most rights protect against state actions, with a few exceptions related to private individuals; violations by private parties are addressed through ordinary legal remedies.
    • (iv) Some rights are negative (limiting state power), while others confer positive privileges.
    • (v) They are justiciable, enabling enforcement through courts if violated.
    • (vi) The Supreme Court safeguards these rights; aggrieved persons can approach it directly without first appealing to High Courts.
    • (vii) Fundamental Rights are amendable only by a constitutional amendment, not ordinary legislation, and must respect the Constitution’s basic structure.
    • (viii) Rights can be suspended during a National Emergency, except those under Articles 20 and 21. Rights under Article 19 may be suspended only during war or external aggression, not internal rebellion.
    • (ix) Their operation is limited by Articles 31A, 31B, and 31C, which protect certain laws and regulations.
    • (x) Parliament may restrict rights for armed forces, paramilitary, police, intelligence agencies, and similar services under Article 33.
    • (xi) Rights can be curtailed where martial law (military rule) is imposed under abnormal conditions (Article 34), distinct from National Emergency.
    • (xii) Most rights are self-executing; some require enabling legislation, which only Parliament can enact for uniformity (Article 35).

• Definition of State

  • Article 12 defines ‘State’ for Part III as including:
    • (a) The Government and Parliament of India — the executive and legislative organs of the Union.
    • (b) The Government and legislature of states — the executive and legislative organs of state governments.
    • (c) All local authorities — municipalities, panchayats, district boards, improvement trusts, etc.
    • (d) All other authorities — statutory or non-statutory bodies such as LIC, ONGC, SAIL, and similar entities.
  • Thus, ‘State’ is broadly construed to include all agencies whose actions can be challenged in courts for violating Fundamental Rights.
  • According to the Supreme Court, even private bodies functioning as instruments of the State fall within this definition under Article 12.

Laws Inconsistent with Fundamental Rights

• Article 13 and Judicial Review

  • Article 13 declares that any law inconsistent with or infringing upon Fundamental Rights shall be void, establishing the doctrine of judicial review.
  • This power is vested in the Supreme Court (Article 32) and High Courts (Article 226), enabling them to strike down unconstitutional laws violating Fundamental Rights.

• Wide Definition of 'Law' under Article 13

  • The term ‘law’ is broadly defined to include:
    • (a) Permanent legislation enacted by Parliament or state legislatures;
    • (b) Temporary laws such as ordinances issued by the President or Governors;
    • (c) Delegated legislation like orders, bye-laws, rules, regulations, or notifications;
    • (d) Non-legislative sources including customs or usages having legal force.
  • Hence, not only statutes but also executive and customary laws can be challenged as violative of Fundamental Rights and declared void.

• Constitutional Amendments and Article 13

  • Article 13 states constitutional amendments are not ‘laws’ and thus generally not subject to challenge.
  • However, in the landmark Kesavananda Bharati case (1973), the Supreme Court ruled that amendments violating Fundamental Rights forming part of the Constitution’s basic structure can be declared void.

• 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 based on religion, race, caste, sex, or place of birth (Article 15).
    • (c) Equality of opportunity in public employment (Article 16).
    • (d) Abolition of untouchability and 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 freedoms: speech and expression, assembly, association, movement, residence, profession (Article 19).
    • (b) Protection regarding 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 trafficking in human beings and forced labour (Article 23).
    • (b) Prohibition of child labour in factories, etc. (Article 24).
  • 4. Right to Freedom of Religion (Articles 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 taxes for promotion of religion (Article 27).
    • (d) Freedom from attending religious instruction or worship in certain educational institutions (Article 28).
  • 5. Cultural and Educational Rights (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 approach the Supreme Court for enforcement of Fundamental Rights, including writs of:
      • (i) habeas corpus,
      • (ii) mandamus,
      • (iii) prohibition,
      • (iv) certiorari,
      • (v) quo warranto.

• Fundamental Rights (FR) of Foreigners

  • FR available only to citizens and not to foreigners:
    • Prohibition of discrimination on religion, race, caste, sex, or place of birth (Article 15).
    • Equality of opportunity in public employment (Article 16).
    • Protection of six freedoms: speech, assembly, association, movement, residence, profession (Article 19).
    • Protection of language, script, and culture of minorities (Article 29).
    • Right of minorities to establish and administer educational institutions (Article 30).
    • Prohibition of trafficking and forced labour (Article 23).
    • Prohibition of child labour 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).
  • FR available to both citizens and foreigners (except enemy aliens):
    • Equality before law and equal protection of laws (Article 14).
    • Protection in respect of conviction for offences (Article 20).
    • Protection of life and personal liberty (Article 21).
    • Right to elementary education (Article 21A).
    • Protection against arrest and detention in certain cases (Article 22).

Prohibition of Discrimination on Certain Grounds

• Article 15 Overview

  • Article 15 prohibits the State from discriminating against any citizen solely on the grounds of religion, race, caste, sex, or place of birth.
  • The terms ‘discrimination’ means making an adverse distinction or treating unfavourably, while ‘only’ implies that discrimination on other grounds is not barred.
  • The second clause of Article 15 forbids imposing any disability or restriction on these grounds regarding:
    • (i) Access to shops, public restaurants, hotels, and places of public entertainment
    • (ii) Use of wells, tanks, bathing ghats, roads, or places of public resort funded or dedicated to the general public
    This prohibits discrimination both by the State and private individuals; the first clause restricts only State discrimination.
  • There are three exceptions permitting special provisions by the State:
    • (i) For women and children, such as seat reservations in local bodies or free education for children
    • (ii) For the advancement of socially and educationally backward classes, Scheduled Castes (SCs), and Scheduled Tribes (STs), e.g., reservations or fee concessions in educational institutions
    • (iii) Specifically for admission of these backward classes and SC/STs to educational institutions including private aided or unaided ones, excluding minority educational institutions (added by the 93rd Amendment Act, 2005)
  • To implement the last provision, the Central Educational Institutions (Reservation in Admission) Act, 2006 established a 27% reservation quota for Other Backward Classes (OBCs) in central higher education, including IITs and IIMs.
    • In April 2008, the Supreme Court upheld both the Amendment and the Quota Act but required exclusion of the ‘creamy layer’ (advanced OBC sections).

  • Creamy Layer Definition

    • Individuals in the following categories are considered part of the creamy layer among OBCs and thus excluded from quota benefits:
    • (i) Holders of constitutional posts such as President, Vice-President, Supreme Court and High Court Judges, UPSC and SPSCs members, CEC, CAG, etc.
    • (ii) Officers of Group ‘A’/Class I and Group ‘B’/Class II in All India, Central and State Services, plus equivalent posts in PSUs, banks, universities, and private employment
    • (iii) Military officers ranked Colonel and above and equivalent ranks in Navy, Air Force, and Paramilitary forces
    • (iv) Professionals like doctors, lawyers, engineers, artists, authors, consultants, etc.
    • (v) Individuals engaged in trade, business, and industry
    • (vi) Holders of agricultural land beyond specified limits or urban vacant land/buildings
    • (vii) Those with a gross annual income exceeding ₹6 lakh or possessing wealth beyond exemption limits (raised progressively since 1993)

• Equality of Opportunity in Public Employment (Article 16)

  • Article 16 ensures equality for all citizens in employment or appointment under the State, forbidding discrimination solely based on religion, race, caste, sex, descent, place of birth, or residence.
  • Exceptions include:
    • (i) Parliament may require residence as a qualification for certain posts within states, union territories, or local authorities (currently applicable only in Andhra Pradesh and Telangana)
    • (ii) Reservation of posts for backward classes underrepresented in state services
    • (iii) Restriction of certain offices related to religious or denominational institutions to persons of that religion or denomination

  • Mandal Commission and Its Impact

    • In 1979, the Morarji Desai government appointed the Second Backward Classes Commission, chaired by B.P. Mandal, under Article 340 to study backward classes and recommend progress measures.
    • The 1980 report identified 3743 castes as socially and educationally backward, comprising around 52% of the population excluding SCs and STs.
    • The Commission recommended 27% reservation for OBCs in government jobs, to bring total reservations for SCs, STs, and OBCs to 50%.
    • In 1990, the V.P. Singh government implemented the 27% reservation for OBCs, and in 1991, the Narasimha Rao government introduced:
      • (a) Economic criteria within OBC reservations favoring poorer sections
      • (b) A new 10% reservation for economically backward higher castes without prior schemes

  • Mandal Case (1992)

    • The Supreme Court examined Article 16(4), which allows job reservation for backward classes.
    • It rejected the extra 10% quota for economically backward higher castes but upheld 27% for OBCs, with conditions:
      • (i) Exclude creamy layer from beneficiaries
      • (ii) Restrict reservation to initial appointments, not promotions (with existing promotion reservations continuing only until 1997)
      • (iii) Total reservations should not exceed 50%, except in extraordinary cases
      • (iv) ‘Carry forward’ of unfilled backlog vacancies is valid if it respects the 50% limit
      • (v) Establish a permanent statutory body to review complaints on OBC inclusion/exclusion

  • Government Responses to Mandal Rulings

    • (i) Ram Nandan Committee (1993) identified the creamy layer, accepted by the government
    • (ii) National Commission for Backward Classes (1993) was established to monitor caste lists for reservations
    • (iii) The 77th Amendment Act (1995) enabled reservation in promotions for SCs and STs underrepresented in state services
    • (iv) The 85th Amendment Act (2001) introduced ‘consequential seniority’ for SC/ST promotions retrospectively from June 1995
    • (v) The 81st Amendment Act (2000) allowed backlog vacancies to be treated as a separate class, effectively removing the 50% ceiling on their reservation
    • (vi) The 76th Amendment Act (1994) placed Tamil Nadu’s 69% reservation law in the Ninth Schedule to protect it from judicial scrutiny

• Abolition of Untouchability (Article 17)

  • Article 17 abolishes untouchability in all forms and declares enforcing any disability on its basis a punishable offence.
  • The Protection of Civil Rights Act, 1955 (amended in 1976) expanded scope and penalties, defining civil rights as those arising from Article 17.
  • Though not explicitly defined, untouchability refers to historical social disabilities linked to caste birth, not mere social boycotts or religious exclusions.
  • Offences under the Act can result in imprisonment up to six months, fines up to ₹500, or both; conviction disqualifies a person from Parliament or state legislature.
  • Offences include:
    • (i) Denying entry to places of worship or participation in worship
    • (ii) Justifying untouchability on traditional or religious grounds
    • (iii) Denying access to shops, hotels, or public entertainment
    • (iv) Insulting a scheduled caste person due to untouchability
    • (v) Refusing admission to hospitals, schools, or hostels established for public benefit
    • (vi) Preaching untouchability directly or indirectly
    • (vii) Refusing to sell goods or provide services
  • The Supreme Court clarified that Article 17 rights extend against private individuals and the State must ensure compliance.

• Abolition of Titles (Article 18)

  • Article 18 bans titles and contains four prohibitions:
    • (i) The State cannot confer any title except military or academic distinctions on citizens or foreigners
    • (ii) Indian citizens cannot accept titles from foreign states
    • (iii) Foreigners holding offices under the State cannot accept foreign titles without presidential consent
    • (iv) No officeholder under the State can accept presents, emoluments, or offices from foreign states without presidential consent
  • This effectively bans hereditary noble titles like Maharaja, Raj Bahadur, Rai Bahadur, etc., as they conflict with equality principles.
  • The Supreme Court in 1996 upheld the constitutionality of national awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri, ruling they do not constitute prohibited hereditary titles.
    • However, it forbade use of these awards as prefixes or suffixes to names, threatening forfeiture otherwise.
  • These awards were instituted in 1954, briefly discontinued by the Janata Party government in 1977, and revived by the Indira Gandhi government in 1980.