Fundamental Rights (Article 12 in 35)

Fundamental Rights (Article 12 to 35)

Indian Polity & Governance / By

Fundamental Rights: – Fundamental Rights are given in the constitution and defined as basic human freedoms, which every Indian citizen has to enjoy for the proper and harmonious development of personality and live a prosperous life.

  • According to the Indian Constitution, the Articles 12-35 of the Constitution deal with Fundamental Rights.
  • Fundamental rights cannot be altered except by constitutional amendment.
  • The legislature can impose limitations on fundamental rights during a national emergency.
  • It’s taken from the American constitution.
  • The Constitution divided Fundamental Rights under 7 groups.
  • After 44th constitutional amendment 1978, the right to property right moved to article 300-A which is outside the fundamental rights. Consequently, now its 6 fundamental right present in the constitution of India.
  • Following is the 6 groups of fundamental rights mentioned in the constitution i.e
    1. Article 14-18 (Right to Equality)
    2. Article 19-22 (Right to Freedom)
    3. Article 22-24 (Right Against Exploitation)
    4. Article 25-28 (Right to Freedom of Religion)
    5. Article 29-30 (Cultural and Educational Rights)
    6. Article 32 (Constitutional Remedies)
  • The Part-3 of constitution starts from Article 12
  • Article 12: – It defines the State which includes:
    • Government and Indian parliament i.e. executive and Legislature of the Union.
    • Government and legislature of the states.
    • Local and all other authorities within the territory of India.
    • Local and all other authorities under the control of GOI.
  • Article 13: – confers the power of judicial review to the courts of all legislative acts.
  • If any violation done by the government related to part 3 of the constitution the supreme court and state high court have power to it unconstitutional under the article 32 and 226 respectively.
  • Article 14: Equality before the Law, it provides the equal protection of the laws within The territory of India. Protection prohibition of discrimination on grounds of religion, race, Caste, sex, or place of birth.
  • The Article 14 has some exceptions that are followings:-
    • Article 361 states that Immunity to the President of India and State Governors.
    • Article 361 (1) states that the President of India and state Governors are not answerable to any court for the exercise and performance of their powers and duties.
    • Article 361 (2) states that No criminal proceedings can be initiated against the President of India and state Governors during their term of office.
    • Article 361 (3) states that No civil proceeding can be instituted during the term of office in respect of any act done by the President of India and State Governor in their personal capacity before or after they enter office till 2 months after the notice has been delivered to the President.
    • The foreign ambassadors and diplomats enjoy immunity from criminal and civil proceedings. The UNO and its agencies enjoy the diplomatic immunity.
  • Article 15 is the prohibition of discrimination. Under this article following provision incorporated.
    • Article 15 (1) says that No discrimination on grounds of religion, race, caste, sex or place of birth can be made.
    • Article 15 (2) says that Prohibits discrimination in public places (shops, hotels, public restaurants, well, tanks, bathing ghats etc.) and applies both to state and private individual.
    • Article 15 (3) says that Provisions for protection of women & children.
    • Article 15 (4) says that Provisions to protect interests of backward classes, added by the1st amendment Act, 1951.
  • Article 16 Equality of opportunity in public employment
    • Article 16 (1) states that No discrimination in public employment on grounds of religion, race, caste, sex, descent, place of birth or residence.
    • Article 16 (3) states that Residence within a state is a qualification for appointment to any government post.
  • Article 16 (4) states reservation of posts in govt. Jobs in favor of any backward class.
  • Article 16 (5) states Provides for the incumbent of any office, in connection with the affairs of any religious or denominational institution or any member of the governing body shall be a person professing a particular religion or belonging to a particular denomination is not a violation of the Constitution.
  • Article 17 states that Abolition of Untouchability. The parliament has passed protection of civil rights act, 1955 to abolish untouchability.
  • Article 18 states that the Abolition of Titles except for military and academic titles, e, Bharat Ratna, Padma Vibhushan, Padma Shri and National Awards.
  • Article 19 provide 6 fundamental rights with all are followings
    • Article 19 (1)
      • (A) Speech & Expression, Freedom of Press & Media People’s Right to Know.
      • (B) Right to assembly.
      • (C) Forming Asssociation.
      • (D) Freedom of movement.
      • (E) Freedom of residence.
      • (F) Freedom of Profession, Occupation, Trade or Business.
    • But some restriction also imposed by the authority in special cases like followings
    • Article 19 (2) imposed restriction on 8 grounds on article 19 (1) (A) i.e.
      • Integrity and sovereignty of India
      • Security of the state
      • Friendly relations with foreign states
      • Public order
      • Decency and morality
      • Contempt of court
      • Defamation
      • Incitement to an offense
    • Article 19 (3) imposed restriction on 3 grounds on article 19 (1) (B) i.e.
      • The assembly must be peaceful.
      • The assembly must be unarmed.
      • Integrity and sovereignty of India
    • Article 19 (4) imposed restriction on 3 grounds on article 19 (1) (C) i.e.
      • Integrity and sovereignty of India.
      • Public order.
    • Article 19 (5) imposed restriction on 2 grounds on article 19 (1) (D) & (E) i.e.
      • Interest of general public
      • Protection of interests of Scheduled Tribe.
  • Article 19 (6) imposed restriction on 3 grounds on article 19 (1) (E) i.e.
    • By the state making any law relating to: Protecting Public interest.
    • Establishing professional/ technical qualifications for a profession/ occupation, trade or business.
    • Enabling state to conduct any trade or business, excluding citizens wholly or partially.
  • Article 20 i.e. Protection in respect of conviction for offenses, it provides 3 safeguards to persons accused of crimes
    • Article 20 (1) Ex-Post facto law – no person shall be convicted of any offense, except for the violation of ‘law in force’. Such protection does not apply in case of Preventive Detention.
    • Article 20 (2) Double Jeopardy – no person shall be prosecuted and punished for the same offense more than once.
    • Article 20 (3): Prohibition against Self Incrimination – no person accused of an offense shall be compelled to be a witness against himself.
  • Article 21 Protection of Life and Personal Liberty No person shall be deprived of his life and personal liberty except according to the law. It includes
    • Right to live with human dignity.
    • Right to livelihood.
    • Right to privacy.
    • Right to shelter.
    • Right to health and Medical Assistance.
    • Right to free legal aid.
    • Right against solitary confinement.
    • Available to ‘citizens’ and ‘non-citizens’.
    • Right to Education is a Fundamental Right under
    • Article 21-A (86th Constitutional Amendment 2002). Etc.
  • Article 22 Protection against arrest & detention in certain cases.
    • Detention is of two types – punitive and preventive
    • Punitive Detention is to punish a person for an offense committed by him after a trial and conviction in a Court.
    • Preventive means detention of a person without trial and conviction of a person for a past offense, but to prevent him from committing an offense in the near future.

It includes

▪Right to be informed about the ground of arrest.

▪Right to be defended by a lawyer of his own choice.

▪Right to be produced before a magistrate within 24hours.

▪No detention beyond 24 hrs except by order of the magistrate.

  • This right is not available to an enemy, an alien and a person arrested and detained under the Preventive Detention.
  • Article 23 Prohibition of traffic in human beings & forced labor.
    • Article 23 (I): prohibits trafficking in human beings and forced labor.
  • Article 24 Prohibition of employment of children in factories, etc.: prohibits employment of children below 14 years of age in a dangerous occupation, factory and mines.
  • Article 25 Freedom of conscience & free profession, practice and propagation of religion: In India, there is no religion of state nor patronize any religion.
  • Article 26 Manage religious affairs
  • Article 27 Freedom of Taxes for the promotion of religion
  • Article 28 freedom from attending religious instruction or worship in a certain educational institute
  • Article 29 Protection of Interest of minorities
    • Article 29 (1) guarantees to citizens having a distinct language, script or culture of its own, the right to conserve the same.
  • Article 30 provides for the right of religious and linguistic minorities to establish and maintain an educational institution to conserve their language, script or culture.
  • Article 31 was Right to Property which was a fundamental right, was repealed by 44th Constitutional Amendment, 1978. It made a Constitutional Right under ordinary law under Article 300-A.
  • Article 32 Right to Consitutional Remidies
    • It’s the most important article in fundamental rights because it provides for machinery for the effective enforcement of Fundamental Rights.
    • It empowers a person to approach the Supreme Courtdirectly for the enforcement of his Fundamental Rights.
    • Can’t be suspended during the emergency.
    • “The very soul and heart of the Constitution.” –Dr. B.R Ambedkar
  • Article 32 provide 6 writs that are followings
    • Habeas corpus (‘to produce the body of’) Order to the person who has detained another to produce the detainee before the court. This is issued to let the court know the grounds of confinement. This protects individual liberty.
    • Mandamus (‘a Command’) Mandamus can be issued by the court to enforce Fundamental Rights: whenever a public officer or a Government has committed an Act violating a person’s Fundamental Rights, the court can restrain that authority from enforcing such orders or committing such an act.
    • Prohibition (to forbid’) Issued by Supreme Court or High Court to a lower court forbidding it to continue proceedings in a case beyond its jurisdiction or exercise the jurisdiction which is not vested with it legally.
    • Certiorari (‘to be certified’) Issued to a lower court after a case has been decided by it quashing the decision or order. It ensures that the jurisdiction of an inferior court or tribunals is properly exercised.
    • Quo Warranto (‘what is your authority’) Issued by the court to inquire into the legality of claim which a person asserts to a public office.
  • Article 226 enables the High Court to issue writs Article 32 is used for the enforcement of fundamental rights only, Article 226 is helpful for “any other purpose” also. Therefore the power of the High Court is wider under Article 226 than the power conferred on the Supreme Court under Article 32.
  • Article 33: The Parliament is empowered to abrogate the fundamental rights of the members of the armed forces, paramilitary forces, police forces, intelligence agencies and other related agencies.
  • Article 34: This provides for the restriction of the fundamental rights while martial law is in force in any area within the territory of the country.
  • Article 35: The Parliament makes laws to give effect to certain specified fundamental rights shall vest only in Parliament and not in the state legislature.