Fundamental rights

The concept of India granting the future citizens of India their fundamental rights after departure of the British was perceived by Jawaharlal Nehru in 1927 itself. The idea was seconded by Subhash Chandra Bose. But none of the leaders in those days dreamt of India becoming a Sovereign Nation in near future and not speak of the rights of citizens. Nehru wanted the resolution on fundamental rights to be passed in AICC session of 1929. But Patel and Gandhi rejected the issue. Then Nehru along with Bose and Iyengar formed ‘Democracy front’ within Congress to pursue the matter. At last Nehru succeeded in pursuing Gandhi and Patel in 1931. At last in the Karachi session of AICC, 1931 under the Presidentship of Patel passed a resolution enlisting the Fundamental rights of future citizens of India based on the points prepared by Nehru. The same principles ware enumerated as goals of the Constituent Assembly during the inaugural address of the Assembly in 1946 by Nehru which were accepted by the Assembly.

There are six fundamental rights enshrined in the Part III of the Constitution of India as listed below:

  • Right to equality (Article 14–18)
  • Right to freedom (Article 19–22)
  • Right against exploitation (Article 23–24)
  • Right to freedom of religion (Article 25–28)
  • Cultural and educational rights (Article 29–30)
  • Right to constitutional remedies (Article 32–35)

I hereby give some main Article pertaining to Fundamental rights for ready reading from the Constitution as it is.

Before going into the details of Fundamental Rights let us read once the Article 13 which prevents the State from destroying the provisions of Fundamental rights by the Legislature, Parliament or State Legislatures.

Article 13 

(Part III of the Constitution contains Articles 12 to 35.)

(1)  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.

(2) 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.

(3) In this article, unless the context otherwise requires,

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4)Nothing in this article shall apply to any amendment of this Constitution made under article 368.

Fundamental Rights

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.

Article 15 Prohibition of discrimination

Article 15 envisages that,

1)     The State shall not discriminate against any citizen on grounds only of Religion, race, caste, sex, place of birth or any of them. 

2)     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 regard to –
         a)    Access to shops, public restaurants, hotels and places of public entertainment or
         b)    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 general public.

3)     Noting in this article shall prevent the State from making any special provision for women and children.
4)     Nothing in this article or in clause (2) of Art 29 shall prevent the State From making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and The Scheduled Tribes

(5) 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 Castes 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.]

Article 16 Equality of Opportunity

1)     There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

2)     No citizen shall on grounds 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 the State.

3)     Nothing in this article shall prevent Parliament from making any 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 as to residence within that State or UT prior to such employment or appointment. 1[under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4)       Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

2[(4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]

4[(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 provision 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 class 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 fifty per cent. reservation on total number of vacancies of that year.]

(5)       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.

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 law.

Article 19 Right to Freedom

19. (1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Article 20 Right against arbitrary conviction

(1) No person shall be convicted of any offence except for violation of a 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.

(2)       No person shall be prosecuted and punished for the same offence more than once.

(3)       No person accused of any offence shall be compelled to be a witness against himself.

Article 21 Right to Life and Personal Liberty

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

*[21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]

Article 22 Right to know reasons for arrest        

(1) 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.

(2)       Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four 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 a magistrate.

(3)       Nothing in clauses (1) and (2) shall apply—

(a)       to any person who for the time being is an enemy alien; or

(b)       to any person who is arrested or detained under any law providing for preventive detention.

**(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—

  • an Advisory Board consisting of persons 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 three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

(b)       such person is detained in accordance with the provisions of any law made by Parliament under sub- clauses (a) and (b) of clause (7).

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(5)       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.

(6)       Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7)       Parliament may by law prescribe—

*(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

**(b) 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)].

Article 25, Right to Freedom of Religion

  • (1) 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, practise and propagate religion.
  • Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
    • regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
    • 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 I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

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

Article 26 Right to establish religious institutions

  • 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;

(c) to own and acquire movable and immovable property; and

(d)            to administer such property in accordance with law.

Article 27 No forced taxes for religious purposes

27. 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 No religious instruction in govt schools

28. (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an 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.

(3) No person attending any educational institution recognised 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 thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

Article 29, Cultural and Educational Rights

29. (1) 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.

(2) 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.

Article 30 Minorities rights

30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

1[(1A) 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.

Article 34 indemnification of person under Govt service

34. Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

Article 35 Parliament has power to make laws

35. Notwithstanding anything in this Constitution,—

(a)  Parliament shall have, and the Legislature of a State shall not have, power to make laws—

(i)  with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and

(ii) for prescribing punishment for those acts which are declared to be offences under this Part;

and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);

(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.

Explanation.—In this article, the expression “law in force” has the same meaning as in article 372.

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