CHAPTER 9 - Fundamental Rights (PART - III)

Fundamental Rights

• The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of USA.
• Part III of the Constitution is rightly described as the Magna Carta of India.

Originally, the Constitution provided for seven Fundamental Rights

1. Right to equality (Articles 14–18)

2. Right to freedom (Articles 19–22)

3. Right against exploitation (Articles 23–24)

4. Right to freedom of religion (Articles 25–28)

5. Cultural and educational rights (Articles 29–30)

6. Right to property (Article 31)

7. Right to constitutional remedies (Article 32)

• 44th Amendment Act (1978) - right to property was deleted from the list of Fundamental Rights. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

Features of Fundamental Rights

i. They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.

ii. They are not absolute but qualified. The state can impose reasonable restrictions on them.

iii. They are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly go to the Supreme Court.

iv. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act.

v. They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.

vi. Their application can be restricted while martial law is in force in any area. 

"State" (Article 12)

The term state is defined in the article 12. According to it, the State includes

(a) Government and Parliament of India

(b) Government and legislature of states

(c) All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.

(d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

Kesavananda Bharati case (1973)

• The Supreme Court held in that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.
• Article 13 - declares that a constitutional amendment is not a law and hence cannot be challenged.

Fundamental Rights at a Glance

Category	Consists of
1. Right to equality (Articles 14–18)	(a) Equality before law and equal protection of laws (Article 14). (b) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15). (c) Equality of opportunity in matters of public employment (Article 16). (d) Abolition of untouchability and prohibition of its practice (Article 17). (e) Abolition of titles except military and academic (Article 18).
2. Right to freedom (Articles 19–22)	(a) Protection of six rights regarding freedom of: (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession (Article 19). (b) Protection in respect of conviction for offences (Article 20). (c) Protection of life and personal liberty (Article 21). (d) Right to elementary education (Article 21A). (e) Protection against arrest and detention in certain cases (Article 22).
3. Right against exploitation  (Articles 23–24)	(a) Prohibition of traffic in human beings and forced labour (Article 23). (b) Prohibition of employment of children in factories, etc. (Article 24).
4. Right to freedom of religion (Article 25–28)	(a) Freedom of conscience and free profession, practice and propagation of religion (Article 25). (b) Freedom to manage religious affairs (Article 26). (c) Freedom from payment of taxes for promotion of any religion (Article 27). (d) Freedom from attending religious instruction or worship in certain educational institutions (Article 28).
5. Cultural and educational rights (Articles 29–30)	(a) Protection of language, script and culture of minorities (Article 29). (b) Right of minorities to establish and administer educational institutions (Article 30).
6. Right to constitutional remedies (Article 32)	Right to move the Supreme Court for the enforcement of fundamental rights including the writs of (i) habeas corpus, (ii) mandamus, (iii) prohibition, (iv) certiorari, and (v) quo war-rento (Article 32).

•  The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution.
• Rule of Law - The concept of ‘equality before law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist.
• The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.

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