Fundamental Rights

Fundamental Rights under the Constitution are given in Article 12 to Article 35; they are classified into 6 subgroups which are as following:

I. Right to Equality (Article 14 to 18)

Article 14: Equality Before Law and Equal Protection of Law: The said article commands the State neither to deny to any person ‘equality before law’ nor the ‘equal protection of the laws’. Equality before law prohibits discrimination. It is a negative concept.

• The concept of ‘equal protection of the laws’ requires the State to give special treatment to persons in different situations in order to establish equality amongst all. It is positive in character.
• Therefore, the necessary corollary to this would be that equals would be treated equally, whilst un-equals would have to be treated unequally.

Article 15: Prohibition of Discrimination on the Basis of Sex, Caste, Religion, Race or Place of Birth: The article prevents discrimination on the basis of sex, caste, religion, race or place of birth.

• However, this Article does not prevent the State from making any special provisions for women or children.
• Further, it also allows the State to extend special provisions for socially and economically backward classes for their advancement.
• It applies to the Scheduled Castes (SC) and Scheduled Tribes (ST) as well.

Article 16: Equality of Opportunity in Matters of Employment: his Article also provides the autonomy to the State to grant special provisions for the backward classes, under-represented States, SC & ST for posts under the State.

• Local candidates may also be given preference is certain posts. Reservation of posts for people of a certain religion or denomination in a religious or denominational institution will not be deemed illegal.
• In State of Kerala v. N.M. Thomas case, it was held that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims Fundamental rights as enacted in Part III of the Constitution are, by and large, essentially negative in character.
• In Indira Sawhney’s case, SC observed that to bring about equality between the unequals, it was necessary to adopt positive measures to abolish inequality. The equalizing measures would have to use the same tools by which inequality was introduced and perpetuated.
• Otherwise, equalization will not be of the unequals. These equalizing measures would be validated by Article 14 which guarantees equality before law.

Article 17: Abolition of Untouchability: The Untouchability Offences Act of 1955 (renamed the Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.

• Similarly, SC/ST Atrocity Act, 1989 provided for stringent punishment against atrocities. The most controversial provision which was in news was ‘making offences under act non-bailable’. Supreme Court overturned it and allowed anticipatory bail which was finally reversed via central government notification.

Article 18: Abolition of Titles: The Act abolished the titles such as Rai Bahadur and Khan Bahadur conferred by the British. However, Military and academic distinctions can be conferred upon.

• The awards such as Bharat Ratna and Padma Vibhushan do not fall within the constitutional prohibition as stated by Supreme Court in Balaji Raghavan vs. Union of India (1995). Thus, they cannot be used by the recipient as a title.
• If one has to accept any foreign title, he/she will have to take prior permission form the President of the Country.

II. Right to Freedom (Article 19 to 22)

Article 19: Right to Freedom: Article 19 (1a) - Freedom of speech and expression.

• Article 19 (1b) - Freedom to assemble peacefully without arms.
• Article 19 (1c) - Freedom to form unions or associations.
• Article 19 (1d) - Freedom to move freely throughout the territory of India.
• Article 19 (1e) - Freedom to reside and settle in any part of India.
• Article 19 (1g) - Freedom to practice any profession or occupation.
  • Article 19 (2) to Article 19 (6) contains reasonable restrictions on the rights mentioned above. Fundamental rights under article 19 are not absolute i.e. they are subject to reasonable restrictions like integrity & security of India, friendly relations with foreign states, public order, decency, etc.
  • It is apparent that the right to information was not spelt out as a separate right under Article 19. However, it is now well-settled in a catena of cases that the right to freedom of speech and expression enshrined in Article 19(1a) includes the right to information.
  • The inter-relationship between article 14, 19 and 21 was examined in many cases like Maneka Gandhi (1978), Minerva Mills (1980), Bachan Singh (1982), T.R. Kothandaraman (1994), etc.
  • The overarching consensus over relationship can be best manifested in the following observation made by Justice Hansaria in T.R. Kothandaraman v. Tamil Nadu Water Supply & Drainage Board, (1994) case that the golden triangle of our Constitution is composed of Articles 14, 19 and 21. Incorporation of such a trinity in our paramount parchment is for the purpose of paving such a path for the people of India which may see them close to the trinity of liberty, equality and fraternity.
  • Article 19 (f) was repealed in 1979 to ensure success of land reforms; it conferred the right to acquire, hold and dispose of property. Similarly Article 31 was repealed via 44th amendment act.

Article 20: Protection in Respect of Conviction for Offences

• Article 21: Protection of Life and Personal Liberty: Article 21 confers on every person the fundamental right to life and personal liberty. It is the most fundamental of human rights, and recognizes the sanctity of human life.
• Initially, the approach to Article 21, as in A.K. Gopalan v. State of Madras, AIR 1950 was restricted to a rather literal interpretation of the Article. It was a circumscribed approach. The concept of “personal liberty” gradually began to be liberally interpreted by the judiciary. The Hon’ble Supreme Court of India, in Kharak Singh v. State of UP, 1963, held, with respect to ‘personal liberty’, that ‘personal liberty in article 21 is a compendious term and includes within itself variety of rights’.
• Some of the rights which could fall under the ambit of Article 21 have been clearly spelt out by the judiciary in various judgments, to be a part of Article 21:
• Right to counsel [M.H. Hoskot v. State of Maharashtra, (1978)]
• Right of a person to not be subjected to bonded labour [PUCL v. Union of India, (1982)]
• Right to livelihood [Olga Tellis v. Bombay Municipal Corpn, (1985) and DTC v. DTC Mazdoor Congress]
• Right to immediate medical aid [Parmanand Katara v. Union of India, (1989)]
• Right to free legal aid [State of Maharashtra v. MP Vashi (1991)]
• Right to privacy [Justice K. S. Puttaswamy (Retd) Vs. Union of India (2017)]

Article 21A: Right to Free and Compulsory Education (Added via 86^th Amendment Act, 2002)

Article 22: Protection against Arrest and Detention in Certain Cases

III. Right against Exploitation (Article 23 to 24)

• Article 23: Prohibition of Traffic in Human Beings and Forced Labour: This Article has been clearly designed to protect the individual not only against the State, but also against private individuals. It prohibits not only forced labour, but also ‘traffic in human beings’, which includes trafficking women for immoral or other purposes.
• Article 24: Prohibition of Employment of Children in Factories, etc.: In the case of M.C. Mehta v. State of Tamil Nadu, (1996) the Hon’ble Supreme Court took judicial notice of child labour in Sivakasi, where the provisions of Article 24 were being violated. It was held that abolition of child labour is definitely a matter of great public concern and importance. Poverty was held to be the driving force behind the evil of child labour.

IV. Right to Freedom of Religion (Article 25 to 28)

• Article 25: Freedom of conscience and free profession, practice and propagation of religion.
• Article 26: Freedom to manage religious affairs.
• Article 27: Freedom as to payment of taxes for promotion of any particular religion.
• Article 28: Freedom as to attendance at religious instruction or religious worship in certain education institutions.
• In Commissioner of Police vs. Acharya Jagadishwarananda Avadhuta, (2004) case, Supreme Court touched upon the freedom of religion with respect to Article 14, and held that - ‘If one religious denomination is allowed to carry on its religious practice but another religious denomination is restrained from carrying on religious practice and almost similar religious practices, the same makes out a clear case of discrimination in violation of the principles of Article 14 of the Constitution.’

V. Cultural and Educational Rights (Article 29 and 30)

• Article 29: Protection of interests of minorities.
• Article 30: Right of minorities to establish and administer educational institutions.
• The most important judicial pronouncements with respect to articles 29 and 30 have been T.M.A. Pai Foundation v. State of Karnataka, (2002) and P.A. Inamdar v. State of Maharashtra, (2005) case.

VI. Right to Constitutional Remedies (Article 32)

• Article 32: The Right to Move the Supreme Court by Appropriate Proceedings for the Enforcement of the Rights Conferred by this Part is Guaranteed.
• The Supreme Court has power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
• Similar power is entrusted with High Courts under article 226 of the Constitution.