Part III - Fundamental Rights (Article 12 - 35)

India is the world's largest democracy. India guarantees rights that are essential components of a democratic society. The most essential of these rights are enshrined in the Indian Constitution as Fundamental Rights. Fundamental rights are the basic rights of a citizen, which is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all indians can lead their life 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 a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or gender. They are enforceable by the courts subject to certain restrictions. Fundamental rights are rights that cannot be denied to an individual under any circumstances. Fundamental rights are a set of rights that are specifically protected in the Constitution. The Constitution stipulates that even the government cannot violate them. If fundamental rights are violated, the person who became the victim has the right to go directly to the highest court and get justice. The Supreme Court is known as the 'protector of fundamental rights'. The instrument for the protection of fundamental rights is known as writs. The Legislatures of the states do not have power to enact laws with respect to Fundamental Rights and only the Parliament has such a right. Fundamental rights can be suspended during an emergency by the Parliament. The President has the power to revoke fundamental rights during the period of emergency. The Rights have their origins from many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. Part III of the Constitution has been described as the cornerstone of the Constitution, the Magna Carta of India, and the beacon of freedom. Originally there were seven Fundamental Rights in the Constitution, but the Right to Property was made a legal right under Article 300A by 44th Amendment 1978. At present there are only six Fundamental Rights in the Constitution. They are

1. Right to Equality (Article 14 - 18)

2. Right to Freedom (Article 19 - 22)

3. Right against exploitation (Article 23 - 24)

4. Right to Freedom of Religion (Article 25 - 28)

5. Cultural and Educational Rights (Article 29 - 30)

6. Right to Constitutional Remedies (Article 32)

Right to Education - Article 21A declares that the state shall provide free and compulsary education to all children of the age of 6 to 14 years. So now elementary education is a fundamental right added by the 86th Constitutonal Amendment Act of 2002.

Right to Property - When the Indian Constitution came into force, the right to property was a fundamental right. Currently, the right to property is a legal right. Right to Property was removed from the fundamental rights by the 44th Constitutional Amendment of 1978. The 44th Constitutional Amendment came into force in 1979. Right to Property was added to the Constitution in Article 300A of Part XII. Right to Property was earlier mentioned in the Constitution in Article 31. Articles 31A, 31B, 31C are still in force.

Origins

In the Madras Conference of 1927, it was declared that the Declaration of Fundamental Rights would be the basis of the future Indian Constitution. M.A. Ansari was the President of the Madras Conference. In 1928, the Motilal Nehru Committee demanded a Bill of Rights. In the Karachi Conference of 1931, a resolution on Fundamental Rights was passed. The resolution was written and drafted by Jawaharlal Nehru. Sardar Vallabhbhai Patel was the President of the Karachi Conference. Sardar Vallabhbhai Patel is known as the architect of Fundamental Rights.

Article 12 - 35 of Indian Constitution

Article 12 - Definition of States

Article 13 - Laws that violate or deviate from fundamental rights

Article 14 - relates to Right to Equality

Article 15 - Prohibition of discrimination on the basis of caste, religion, color, sex, or place of birth 

Article 16 - Equal opportunity in public employment

Article 17 - abolishes the practice of untouchability

Article 18 - prohibits the state from confering any title

Article 19 - deals with six freedoms of indian citizens namely, freedom of speech and expression, freedom of assembly, freedom of association, freedom of movement throughout the territory of india, freedom of residence and settlement in any part of india and freedom of occupation.

Article 20 - protection for those found guilty of crimes

Article 21 - provides protection to life and liberty to all persons

Article 21A - right to elementary education

Article 22 - affords protection against arbitrary arrest and detention

Article 23 - prohibits the traffic in human beings and beggars. (making a person work without wages or adequate compensation)

Article 24 - probibits the employment of children below 14 years of age.

Article 25 - religious freedom and the freedom to practice, profess, and spread religion

Article 26 - the right to control religious matters

Article 27 - freedom to pay taxes for the advancement of any certain religion

Article 28 - freedom to participate in religious worship or instruction in specific educational institutions

Article 29 - preserving minorities' interests

Article 30 - minorities' right to create and run educational institutions

Article 31 - mandatory property acquisition (omitted)

Article 31A - preservation of legislation pertaining to the purchase of lands, etc.

Article 31B - approval of certain Acts and Regulations

Article 31C - saving laws that implement certain directive principles is covered

Article 31D - laws pertaining to anti-national acts are saved (omitted)

Article 32 - right to constitutional remedies described as 'the heart and soul of the constitution' by Dr.BR.Ambedkar.

Article 32A - state laws' constitutionality will not be taken into account in Article 32 procedures (Omitted)

Article 33 - parliament's authority to change the rights granted by this section in relation to forces, etc.

Article 34 - limitations on the rights granted by this Part in any region where military law is in effect

Article 35 - laws to implement this part's requirements 

Significance and Characteristics of Fundamental Rights

• During the framing of the Constitution, a list of rights that should be specially protected was included in the Constitution. They are known as Fundamental Rights.

• Some of the fundamental rights are reserved for citizens only. Some are reserved for citizens, foreigners and legal entities such as corporations/companies.

• Fundamental rights are neither absolute nor unlimited. They are subject to conditions. The government can impose reasonable restrictions on them. The courts decide whether such restrictions by the government are reasonable or not.

• Fundamental rights act as a protective shield for the citizen against arbitrary actions of the state.

• Some of the fundamental rights are negative in nature. They limit the freedoms of the administrative bodies. Others are positive in nature. They give certain privileges to the individuals.

• Fundamental rights are justiciable. A citizen can approach the court to enforce fundamental rights and can directly file a case in the Supreme Court or the High Court for the protection of fundamental rights.

• A fundamental right is not something that can be restricted by Parliament through ordinary law. It requires a constitutional amendment. Parliament can amend fundamental rights in a way that does not affect the basic structure of the Constitution.

• In the event of a national emergency, the government can restrict fundamental rights except Articles 20 and 21. To restrict the six fundamental freedoms under Article 19, there must be circumstances such as war or foreign invasion.

• Since Fundamental Rights are very important, the Constitution ensures that the government itself does not violate them.

• Generally, while ordinary laws protect and enforce legal rights, it is the Constitution of the country that protects and guarantees fundamental rights.

• While ordinary laws can be amended through a simple procedure, amendment of fundamental rights is possible only through a constitutional amendment.

• The judiciary is the branch that has the power to declare such actions illegal if the actions of the executive and legislative branches violate fundamental rights or restrict them in an unfair manner.

Writs in Indian Constitution

The instrument for the protection of fundamental rights is known as writs. If fundamental rights are violated, a public interest litigation can be filed before the Supreme Court under Article 32 (Right to Constitutional Remedies) of the constitution and before the High Court of the state under Article 226. The Supreme Court and the High Courts can issue writs under Articles 32 and 226 of the Constitution.

Types of Writs

Habeas Corpus (to have the body) - It is an order issued by the court to person who has detained another person, to produce the body of the latter before the court.

Mandamus (we command) - It is a command issued by the court to a public official asking him to perform his official duty that he has failed or refused to perform.

Certiorari (to be certified) - It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.

Quo Warranto (on what authority) - It is issued by the court to enquire into the legality of claim of a person to a public office.

Prohibition (to forbid) - It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.

Rights other than Fundamental Rights of Part III

• In addition to the fundamental rights included in Part III, the Constitution also grants certain other rights to the citizen - also known as constitutional rights, statutory rights or non-fundamental rights.

• The main rights of this kind are

i. No tax shall be levied or collected except by lawful authority. (Article 265, Part XII)

ii. No person shall be deprived of his property except by lawful authority. (Article 300A, Part XII)

iii. Trade, commerce and sale shall be free throughout India (Article 301, Part XIII)

iv. Right to vote for adults (Article 326, Part XV)

• In case of violation of such rights, ordinary legal protection is granted by the High Court.