Fundamental Rights (Article 12 - 35)- 1 - Lucent For GK - UPSC

Introduction

Fundamental Rights are basic human rights guaranteed by the Constitution; they are essential for the full development of the personality of every individual and for preserving human dignity. These rights apply to citizens (and in some cases to persons) and can be enforced by the courts. Part III of the Constitution covers Fundamental Rights from Articles 12 to 35 and is divided into several categories addressing equality, freedom, protection from exploitation, religious freedom, cultural and educational rights, and remedies for enforcement.

• Fundamental Rights were included in the Constitution to secure individual liberty, equality and justice, and to promote the development of the personality of each citizen.
• All persons, irrespective of religion, race, caste or sex, have the right to move the Supreme Court and the High Courts for enforcement of their Fundamental Rights (subject to the scope of each Article).
• There are seven broad categories of Fundamental Rights covered under Articles 12-35.

Article 12 - Definition of "the State"

For the purposes of Part III, unless the context otherwise requires, "the State" includes:

• the Government and Parliament of India;
• the Government and the Legislature of each State; and
• all local or other authorities within the territory of India or under the control of the Government of India.

This Article is crucial because Fundamental Rights are enforceable against the State; determining whether an action or body falls within the meaning of "the State" decides whether a right can be invoked.

Article 13 - Laws inconsistent with or in derogation of Fundamental Rights

Article 13 establishes the relationship between pre-existing or subsequently made laws and Fundamental Rights.

• All laws in force in the territory of India immediately before the commencement of the Constitution, to the extent they are inconsistent with Part III, are void as far as they are inconsistent.
• The State shall not make any law which takes away or abridges the rights conferred by Part III; any such law is void to the extent of contravention.
• "Law" in this Article includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in India.
• "Laws in force" include laws passed or made before the commencement of the Constitution and not previously repealed, even if not in operation in all areas.
• Nothing in Article 13 applies to an amendment of the Constitution made under Article 368.

Key legal principles derived from Article 13:

• Doctrine of inconsistency - a law inconsistent with Fundamental Rights is void.
• When a provision of a statute can be severed so that the portion inconsistent with Fundamental Rights is struck down while leaving the rest intact, the courts apply the doctrine of severability.
• Judicial interpretation has developed limits on the amending power of Parliament (basic structure doctrine) so that amendments under Article 368 cannot destroy the essential character of the Constitution.

Article 14 - Equality before law and equal protection of the laws

Article 14 provides two complementary concepts of equality:

• Equality before the law - no person is above the law; everyone is subject to the same laws administered without arbitrary discrimination.
• Equal protection of the laws - the State must provide equal legal protection to all persons in similar circumstances; it requires reasonable classification where differential treatment is provided.

Principles and tests:

• Classification for legislation is permissible if it is not arbitrary, the classification is based on intelligible differentia, and the differentia bears a rational relation to the object of the law.
• Arbitrariness in State action is forbidden; equality under Article 14 also protects against whimsical or discriminatory exercise of power.

Article 15 - Prohibition of discrimination

Article 15 prohibits discrimination by the State on grounds only of religion, race, caste, sex or place of birth.

• The State shall not discriminate against any citizen on the grounds mentioned.
• No citizen shall be subjected to any disability, restriction or condition relating to:
• access to shops, public restaurants, hotels and places of public entertainment;
• 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.
• The Article permits the State to make special provisions for women and children.
• The Article permits special provisions for the advancement of socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes (this is the constitutional basis for reservation policies).

Article 16 - Equality of opportunity in public employment

Article 16 ensures equality of opportunity to citizens in matters of public employment or appointment to any office under the State.

• No citizen shall be ineligible for, or discriminated against in, any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth or residence.
• Parliament may prescribe residency requirements for particular posts within a State or Union territory.
• The State may make provisions for reservation of appointments or posts in favour of backward classes not adequately represented in services under the State.
• Article 16(4A) permits reservation in matters of promotion to posts in the services under the State for Scheduled Castes and Scheduled Tribes where they are not adequately represented.
• The operation of laws regarding religious institutions (where a post may require incumbents to belong to a particular religion or denomination) is not affected by Article 16.

Article 17 - Abolition of untouchability

Article 17 declares that "untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability is an offence punishable by law.

• Important statutes implementing Article 17 include the Protection of Civil Rights Act, 1955 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
• Article 17 is a direct prohibition on social practice and also creates criminal liability for enforcement of disabilities arising from untouchability.

Article 18 - Abolition of titles

Article 18 prohibits titles conferred by the State, subject to exceptions:

• No title, other than military or academic distinctions, shall be conferred by the State.
• No citizen of India shall accept any title from any foreign State.
• Persons holding office of profit or trust under the State shall not accept foreign titles, presents, emoluments or offices without the President's consent.

Article 19 - Protection of certain rights regarding freedom of speech, etc.

Article 19 guarantees certain freedoms to citizens of India. These are subject to reasonable restrictions in the public interest.

• Article 19(1) grants rights to citizens:
• To freedom of speech and expression.
• To assemble peaceably and without arms.
• To form associations or unions.
• To move freely throughout the territory of India.
• To reside and settle in any part of the territory of India.
• To practise any profession, or to carry on any occupation, trade or business.

Reasonable restrictions:

• Article 19(2) permits restrictions on freedom of speech and expression in the interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence.
• Other clauses permit reasonable restrictions on rights to assemble (19(3)), form associations (19(4)), movement (19(5)), residence (19(5)), trade and profession (19(6)), and profession/occupational qualifications or State-run activities (19(6)).

Interpretation and limits:

• Article 19 rights are available only to citizens.
• The concept of "reasonable restrictions" is judicially interpreted; restrictions must be proportionate and justified by the textual grounds in Article 19.

Article 20 - Protection in respect of conviction for offences

Article 20 guarantees three specific protections:

• 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; no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time.
• No person shall be prosecuted and punished for the same offence more than once (prohibition of double jeopardy).
• No person accused of any offence shall be compelled to be a witness against himself (protection against self-incrimination).

Article 21 - Protection of life and personal liberty

Article 21 states: "No person shall be deprived of his life or personal liberty except according to procedure established by law."

• "Person" includes citizens and non-citizens; thus Article 21 protections extend beyond citizens.
• Judicial interpretation has expanded Article 21 to include the right to live with human dignity and a cluster of derivative rights such as the right to health, clean environment, livelihood, legal aid, fair trial and personal privacy.
• The Supreme Court has held that the procedure which deprives a person of life or liberty must be fair, just and reasonable; arbitrary procedures are not permissible.
• The right to privacy has been recognised as intrinsic to Article 21.

Article 21A - Right to education

Article 21A provides that 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. This Article was inserted by the 86th Amendment (2002).

Article 22 - Protection against arrest and detention in certain cases

Article 22 provides procedural safeguards for persons arrested or detained:

• No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest; the person shall have the right to consult, and to be defended by, a legal practitioner of his choice.
• Every person arrested and detained shall be produced before the nearest magistrate within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court, and shall not be detained beyond that period without the authority of a magistrate.
• Clauses (1) and (2) do not apply to:
• person who for the time being is an enemy alien; or
• person arrested or detained under any law providing for preventive detention.
• No law providing for preventive detention shall authorize detention for longer than three months unless an Advisory Board (composed of persons who are, or have been, or are qualified to be appointed as Judges of a High Court) reports before the expiration of three months that there is sufficient cause for detention; Parliament may by law prescribe maximum limits and procedures in preventive detention cases.
• When detained under preventive detention, the detainee shall be communicated the grounds of the order as soon as may be and be afforded opportunity to make representation against the order; yet the authority need not disclose facts considered contrary to public interest to disclose.
• Parliament may by law prescribe circumstances, classes of cases, maximum periods and procedure to be followed by Advisory Boards relating to preventive detention.

Articles 23-24 - Protection from exploitation

Article 23 - Prohibition of traffic in human beings and forced labour.

• Traffic in human beings, begar (forced labour) and other similar forms of forced labour are prohibited and are offences punishable by law.

Article 24 - Prohibition of employment of children in factories, etc.

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

Articles 25-28 - Freedom of religion

These Articles secure freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health, and regulate State's relation to religious matters.

• Article 25 - Freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and other provisions relating to social welfare and reform.
• Article 26 - Freedom to manage religious affairs; every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes, manage its own affairs in matters of religion, own and acquire movable and immovable property and administer such property in accordance with law.
• Article 27 - No person shall be compelled to pay any taxes 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 State-maintained educational institutions without consent.

Articles 29-30 - Cultural and educational rights

These Articles protect the rights of cultural, linguistic and educational minorities.

• Article 29 - Protection of interests of minorities: any section of citizens having a distinct language, script or culture shall have the right to conserve the same; no citizen shall be denied admission to any educational institution on grounds only of religion, race, caste, language or any of them if the institution is maintained by the State or receives State aid.
• Article 30 - Right of minorities to establish and administer educational institutions: minorities by religion or language shall have the right to establish and administer educational institutions of their choice; the State may make regulations in the interest of standards, but it cannot discriminate against minority institutions in granting aid.

Article 31 - (Historical) Right to Property and related provisions

Note: Article 31 earlier provided a fundamental right to property. That provision was amended/removed by later constitutional amendments. The right to property is now a constitutional right under Article 300A (i.e., it is not a Fundamental Right). This change affects the status of property rights: they continue to exist but as statutory/constitutional rights subject to law rather than as a Fundamental Right under Part III.

Article 32 - Right to constitutional remedies

Article 32 is often described as the heart and soul of the Constitution because it provides the right to move the Supreme Court for enforcement of Fundamental Rights.

• A person whose Fundamental Rights are violated may approach the Supreme Court by appropriate proceedings for enforcement of those rights.
• The Supreme Court has the power to issue directions, orders or writs - habeas corpus, mandamus, prohibition, quo warranto and certiorari - for enforcement of Fundamental Rights.
• Article 32 ensures judicial review and makes the Supreme Court a guarantor of Fundamental Rights; Parliament may make laws to give effect to Part III but cannot take away the basic authority of judicial remedies.

Article 33 - Power of Parliament to modify the rights in their application to Forces, etc.

Parliament may, by law, restrict or abrogate the operation of any of the Fundamental Rights to the extent it is necessary to give effect to the special requirements of discipline and operational efficiency in the Defence Forces, paramilitary forces, intelligence organisations and such services. This allows differential application of rights to those serving in certain capacities where public interest and national security require it.

Article 34 - Restriction on rights conferred by this Part while martial law is in force

If martial law has been declared in any area, Article 34 places restrictions on the exercise of Fundamental Rights to the extent provided by law applying to that area. It permits the State to enact laws inconsistent with Fundamental Rights to meet exigencies of martial law, subject to constitutional safeguards.

Article 35 - Legislation to give effect to the provisions of this Part

Article 35 empowers Parliament to enact laws for implementing the provisions of Part III and to lay down the procedure to be followed in relation to enforcement of Fundamental Rights, subject to the limitations in the Constitution. This includes procedural matters and offences related to the contravention of Fundamental Rights.

Conclusion: interpretation, enforcement and key points

• Fundamental Rights are enforceable against the State and, in certain cases, against private persons when State action is involved.
• Judicial review by the Supreme Court and High Courts is the principal mechanism for enforcement and interpretation of Fundamental Rights.
• Several Articles contain built-in exceptions and permit reasonable restrictions on rights when justified by specified public interests such as security, public order, morality, and health.
• Court decisions over time have expanded the scope of many rights (for example, Article 21 has been interpreted to include various derivative rights such as health, environment, and privacy).
• Some rights originally in Part III (for example, the fundamental right to property under Article 31) were later modified by constitutional amendment and are now arranged differently in the Constitution; always verify the present constitutional status while studying.

If further detail is required on any individual Article (textual analysis, leading judicial pronouncements, case examples or applications to technical subjects such as law aspects in engineering practice), each Article can be expanded into a sectional lesson with cases, statutory references and practice questions.