Part III - consists of Articles 12 - 35 on FUNDAMENTAL RIGHTS
These rights are regarded as fundamental because they are most essential for the attainment by the individual his/her full intellectual, moral and spiritual status. The declaration of the Fundamental Rights in the Constitution serves as the reminder to the Government in power that certain liberties, assured to the people by the Constitution, as respected by law.
• The object behind the inclusion of the chapter on the Fundamental Rights in the Indian Constitution is to establish 'a Government of law and not of man'.
• Fundamental Rights are the restricted rights; they do not give absolute powers to the individual.
• Article 17 and Article 24 are the only absolute rights.
• Right against discrimination [Art 15 (2)], Right against untouchability (Art 17) and Right against exploitation [Art (23) & (24)] can be enforced against the private individuals also.
In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Laws inconsistent with or in derogation of the fundamental rights.—
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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.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.
• Article 13 provides for the Judicial Review of all the legislations in India.
Judicial Review is the power conferred on the High Courts and the Supreme Court of India to declare a law unconstitutional, if it is inconsistent with any of the provisions of Part III of the Constitution, to the extent of the contravention.
• The concept of the Judicial Review is taken from the Constitution of the US.
• The Supreme Court in the number of cases, from Shankari Prasad vs. Union of India (1952), held that the Parliament can amend any of the provisions of the Constitution including Fundamental Rights by its amending power under Art 368, provided such amendments do not infringe the basic structure of the Constitution.
• The Constitution of India contains provisions for automatic suspension of the Fundamental Rights under certain circumstances, as for e.g. during the National Emergency under Article 352 (i.e. war or external aggression).
• The Constitution empowers the President, under Article 359, to suspend any or all the Fundamental Rights by issuing a separate Proclamation during a National Emergency.
• The 44th Amendment Act, 1978 prohibits the suspension of Art. 20 and 21 (protection in respect of conviction for offences and protection of Life and Personal Liberty respectively) even during a National Emergency.
Right to Equality (Art 14-18)
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.
This concept is borrowed from the British Constitution.
Equality before law is a negative concept. It means 'no man is above law' and every person, whatever be his/her social status, is subject to the Jurisdiction of the Courts. The rule of equality before law is, however, not an absolute rule and there are a number of exceptions to it.
Equal protection of law is a positive concept.
• This concept is borrowed from the US Constitution.
• It only means that all persons in similar conditions/circumstances shall be treated alike.
• There can be discrimination between the groups but not within the groups.
• Since the State stands for the welfare of all sections of the society, it can make certain discriminations in favour of those who are less privileged.
• The 'rule of law' embodied in Art. 14 is a "basic feature" of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.
• The word 'any person' in Article 14 of the Constitution denotes that the guarantee of the equal protection of laws is available to any person who includes any association, company or body of individuals.
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—
1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and 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 the general public.
3. Nothing 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 article 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 15 directs the State not to discriminate against a citizen on the grounds only of race, caste, religion, sex or place of birth etc.
• The word 'only' indicates that the discrimination cannot be made merely on the ground that one belongs to a particular caste, religion, race etc.
• If other qualifications are equal, religion, race, caste etc. should not be a disability.
The guarantee under Article 15 is available to the citizens only and not to every person whether 'citizen oman-citizen' (legal resident of a country) as under Article 14.
The third clause empowers the State to make special provisions for the protection of women and children.
The fourth clause which was added by the 1st Constitutional Amendment Act, 1951 enables the State to make special provisions for protection of the interests of the Backward Classes and is, therefore, an exception to Article 15 and 29(2) of the Constitution.
• Art 29(2) states that 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.
Equality of opportunity in matters of public employment.—
(4A.) Nothing in this article shall prevent the State from making any provision for reservation 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.
(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.
• No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or residence be ineligible for, or discriminated against in respect of, any employment or office under the State.
• The State is free to specify the qualifications. There cannot be any other ground for non-eligibility.
• The Constitution (81st Amendment) Act, 2000 has added a new clause (4-B) in Article 16 of the Constitution which seeks to end the 50% limit for the (SC/STs and OBCs in backlog vacancies which could not be filled up due to the non availability of eligible candidates of these categories in the previous years.
• Equal pay for equal work, although not expressly declared to be a Fundamental Right, is clearly a Constitutional goal under Articles 14, 16 and 39 (c) of the Constitution and can be enforced by the Courts in the cases of unequal scales of pay based on irrational classification.
Given under Article 16 (3), 16 (4) & 16 (5) itself i.e.
• Residence can be made as a restriction for employment on the basis of historical aspects.
• Special favors can be given to the Backward Classes which are not adequately represented.
• Religion can be a ground for discrimination in special cases. There are religious institutions taken over by the State, so, the religious posts are reserved for the people of the same religious denomination.
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.
• The Constitution itself does not prescribe any punishment under this Article.
• The Parliament enacted the 'Untouchability (offences) Act, 1955' which prescribes the punishment for the practice of untouchability.
• This Act was amended by the 'Untouchability (offences) Amendment Act, 1976', in order to make the untouchability laws more stringent.
• The name of the original Act was changed to 'Civil Rights (Protection) Act, 1976'.
• Later, when there was violence against members of Scheduled Castes and Scheduled Tribes, leading to brutalities such as mass murder, rape, arson, grievous injuries, etc. enactment of a special law for their protection was resorted to known as Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to provide for strong punitive measures which could serve as deterrence.
• The Act does not define 'untouchability'.
• According to the Supreme Court, 'untouchability' should not be understood in its literal or grammatical sense. It is to be understood as the 'practice as it had developed historically'.
• Article 17 also imposes a duty on the Public Servants to investigate such offences.
Abolition of titles.—
• No citizen of India shall accept any title from any foreign State.
• It also prohibits a foreign national under the employment of the State to receive any title from any foreign State without the consent of the President.
• Article 18 does not prescribe any punishment for the offence.
• Parliament is free to make a law for the punishment.
Right to Freedom (Art 19-22)
Protection of certain rights regarding freedom of speech, etc.—
• The six basic freedoms prescribed in Article 19 are not absolute. The State can impose reasonable restrictions on the grounds of security of the State, friendly relations with the foreign States, public order, decency, morality, contempt of court, defamation etc.
• The right to form associations, unions etc. does not give right to strike.
• The Indian Constitution does not provide for the freedom of Press separately. It is implicit in Article 19, which grants freedom of speech and expression.
Right to Information
• A proper freedom of information regime is a vital aspect of open government and a fundamental underpinning of democracy.
• It is only where there is a free flow of information that accountability can be ensured, corruption avoided and the public's right to know is satisfied.
• Freedom of information is also a crucial prerequisite for sustainable development.
• Resource management, social initiatives and economic strategies can only be effective if the public is informed and has confidence in the government.
Protection in respect of conviction for offences.—
This protection is available against the following three types of convictions:
a) Ex-post facto legislation
• This means enacting a law and giving it a retrospective (i.e. from a previous date / year) effect.
• This power has been conferred to the Parliament by the Constitution.
• This is applicable only for civil legislations while criminal legislation cannot be given retrospective effect.
b) Double Jeopardy
• This means that an individual can be punished for a crime only once and also not beyond the period prescribed by the authority:
• If any law provide for double punishment such a law would be void. The Article, however, does not give immunity from proceedings other than proceeding before a court or a Tribunal. Hence a govt. servant who has been punished for an offence in the court of law may not be subjected to departmental proceedings for the same offence or conversely.
c) Prohibition against self incrimination
• It is the duty of the prosecution to prove the offence. No person who is accused of an offence will be compelled to give witness against himself.
Protection of life and personal liberty.—
No person shall be deprived of his life or personal liberty except according to procedure established by law.
• Over the period, this Article has undergone a sea change and has become the most important Fundamental Right.
• The Supreme Court, through a liberal interpretation of the Article, has derived a number of inferred rights.
• The Article stands not merely for the right to life and personal liberty, but also for the right to dignity and all other attributes of human personality those are essential for the full development of a person.
• Article 21 has become the 'Foundation stone of Part III of the Constitution.
• In some judgements, the Supreme Court held that the right to clean and hygienic conditions of life is a part of Right to Life.
• Article 21 protects an individual both against legislative and executive actions.
• Domiciliary visit by Police during night is an invasion of personal liberty and hence Art 21.
• Right to travel abroad: Part of personal liberty - Hence part of Art 21
• Right to have primary education is a fundamental right under Art_21.
• Art 21 includes the principles of Natural Justice
• Right to health and medical assistance: It is the professional obligation of all doctors, whether government or private, to extend medical aid to the injured immediately to preserve life without waiting for legal formalities.
• Right to get pollution free water & air: Protection of ecology and environment come under Art 21.
• Right to free legal aid and speedy trial are guaranteed under Art 21. According to Supreme Court- "This is the State's duty and not Government Charity".
• Rights against hand-cuffing: There must be clear and present danger of escape—breaking out of police control and for this there must be clear material evidence.
• In Chakma migrants’ case, Supreme Court declared that even non-citizens are entitled for right to life.
• Right against inhuman treatment. According to Art 21 use of "third degree" method by police is violative of Art 21.
• Telephone tapping is an invasion on right to privacy, hence violates Art 21
Fundamental Right to Education – (added by 86th Amendment Act 2002)
It says that the state shall provide free and compulsory education to all children of the age of 6 to 14 years in such a manner as the state may by law determine
Protection against arrest and detention in certain cases —
• The Authority cannot arrest or detain a person without properly informing him/her of the grounds for such arrests/detention.
• The detained/arrested person must be produced before the nearest Magistrate within 24 hours of arrest (excluding the holidays and time taken during the journey).
• The period of the detention cannot be extended beyond what is authorized by the Magistrate.
Right against Exploitation
Prohibition of traffic in human beings and forced labour.—
• Traffic in human beings means selling and buying men and women like goods and includes immoral trafficking in women and children for immoral and other purposes.
• One shall not be forced to provide labour or services against his will even if remuneration is paid.
• If remuneration is less than minimum wages, it amounts to forced labour under Article 23.
Prohibition of employment of children in factories, etc.—
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
• The essence of Article 24 is the prohibition of employment of children below 14 years of age in hazardous jobs.
• This provision is in the interest of public health and safety of the lives of children.
• In NIC. Mehta vs State of Tamil Nadu case, the Supreme Court held that the State authorities should protect economic, social and humanitarian rights of children, working illegally in the Public and Private sectors.
Right to Freedom of Religion (Art.25-28)
• India is a secular State, not an irreligious or an atheist State.
• The State protects all the religions; but interferes with none. It believes in the ancient Indian doctrine of 'Sarva Dharma Sambhava'.
• The State is concerned with the relations between man and man and not with those of man and supernatural power.
• India is a home of many religions, thus, Freedom of religion is the essence or an important element of Freedom in India.
Freedom of conscience and free profession, practice and propagation of religion.—
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.
• Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to the freedom of conscience and the right to profess, practice and propagate religion.
• The right to propagate does not mean alluring a person to join any religion.
• A Constitution Bench of the Supreme Court, in a group of related cases in 1977 called the Rev. Stainislau vs State of Madhya Pradesh and Others case, ruled that Article 25(1) does not give the right to convert but only the right to spread the tenets of one's own religion.
• The Supreme Court was delivering the verdict about the legislation made in Madhya Pradesh and Orissa to outlaw conversions based on force, fraud and allurement in 1968.
Freedom to manage religious affairs.—
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
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.
• If the Government has done any service for a particular religious denomination, the Government is free to charge fees from the devotees.
Freedom as to attendance at religious instruction or religious worship in certain educational institutions.—
• Articles 28 divide educational institutions into four categories:
1. Wholly maintained by the State
2. Recognised by the State
3. Receiving aids out of the State funds
4. Administered by State but established under a religious endowment In the first case, there can be no religious instructions whatsoever. In the second and third case, religious instructions can be imparted, but the pupils cannot be compelled to attend such instructions.
In the fourth case, there is no restriction whatsoever, as far as religious instructions are concerned.
Cultural and Educational Rights (Art 29-30)
Protection of interests of minorities.—
Right of minorities to establish and administer educational institutions —
• The right to preserve language, culture or script can be implemented through educational institutions.
• Administer means the management of affairs of the institution.
• The State can regulate the working of such institutions.
• The Supreme Court observed that the Right to Administration is not the Right to Maladministration.
• The university can put basic qualifications for the selection of teachers.
• Conscience: absolute inner freedom of the citizen to mould his/her own relation with God in whatever manner he/she likes.
• Profess: to declare freely and openly one's faith and belief.
• Practise: to perform the prescribed religious duties, rites and rituals and to exhibit his religious beliefs.
• Propagate: spread and publicise his/ her religious views for the edification of others. It only indicates persuasion and exposition without any element of coercion.
[Compulsory acquisition of property] Rep. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 6 (w.e.f. 20-6-1979)
Saving of Certain Laws
Saving of laws providing for acquisition of estates, etc—
• Added by 1st Amendment Act, 1951
• It relates to the protection of laws providing for acquisition of estates.
• It provides that taking over of the management of any property of the state for a limited period either in the public interest or in order to secure the proper management of th property, shall be constitutionally valid even though it takes away or abridges any of the rights under Art 14 & 19.
Validation of certain Acts and Regulations—
It provides that if any law is made by parliament and the same is put into the IX Schedule, then it will not be challenged in the court of law on the ground that it is violative of any of the Fundamental Right in part III of the constitution. However if any such law is put into IX Schedule after 24th April 1973, the date on which ‘Keshavnanda Bharti’ case was decided, such law can be challenged if they are violative of the basic structure of the constitution.
Saving of laws giving effect to certain directive principles.—
If any law made ot implement Art 39(b) &(c) then, even if such a law violate the Fundamental Rights contained in Art 14 & 19, such law shall be considered as valid.
Right to Constitutional Remedies
Remedies for enforcement of rights conferred by this Part.—
• Article 32 provides institutional framework for the enforcement of the Fundamental Rights by the Supreme Court.
• Dr. B.R. Ambedkar called this Article as "The fundamental of the Fundamental Right" and "the heart and soul of the Constitution."
• To enforce the Fundamental Rights, the Supreme Court is empowered, under Art 32, to issue writs of various forms.
• The concept of issuing writs is taken from the UK.
The five forms of writs are as follows:
1. Habeas corpus - It literally means to have a body' i.e., to be produced before the Court.
• This kind of writ is issued to protect personal liberty of an individual against the arbitrary action of both the State and private individuals.
• The aggrieved person can even claim for compensation against such action.
2. Mandamus - It literally means 'Command'.
• This kind of writ is issued against a public authority or an officer and inferior Courts for purpose of enforcing legal rights only.
• This writ cannot be issued against the President and the Governors.
Private rights cannot be enforced by the writ of the Mandamus.
3. Prohibition - "to restrain "
This kind of writ is issued by the higher Courts to the lower Courts or the quasi-judicial bodies when the latter exceed their judicial authority.
The objective is to keep the inferior Courts or the quasi-judicial bodies within the limits of their respective jurisdiction.
• The difference between 'Mandamus' and 'Prohibition' is that while the former can be issued against judicial as well as administrative authorities, the latter is issued only against the judicial or quasi-judicial authorities.
4. Certiorari - It is similar to Prohibition.
• This writ is issued to quash the order of a lower Court or the decision of a tribunal in excess of its jurisdiction.
• The purpose of this writ is to secure that the jurisdiction of an inferior Court or tribunal is properly exercised and that it does not usurp the jurisdiction it does not possess.
5. Quo Warranto- It literally means "what is your authority".
• This kind of writ is issued to ensure that the person holding a public office is qualified to hold the office.
However, there has been a progressive strengthening of the Fundamental Rights as well.
Firstly, there have been attempts to make Right to Work a Fundamental Right. Secondly, the Supreme Court has been interpreting the Right to Life as including all basic material facilities and legal access to them like clean environment. Thirdly, the Supreme Court, in the case of capitation fees in April 1993 held that right to primary education is Fundamental Right. Finally, the Supreme Court has always come to the rescue of the journalists, whose reports have been found to be violative of the privileges of the legislators, and these arrests have been ordered by the legislatures without giving journalists a chance to free and fair trial, as promised by Art. 21.
Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.— Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
a. the members of the Armed Forces; or
b. the members of the Forces charged with the maintenance of public order; or
Restriction on rights conferred by this Part while martial law is in force in any area—
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.
Legislation to give effect to the provisions of this Part.—Not withstanding anything in this Constitution,—
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);
Explanation.—In this article, the expression "law in force'' has the same meaning as in article 372.