FUNDAMENTAL RIGHTS OF CITIZENS AND FOREIGNER

AMENABILITY OF FUNDAMENTAL RIGHTS

DIFFERENCE BETWEEN FRS AND DPSPS

RIGHT TO EQUALITY (ART 14-18)

RIGHT TO FREEDOM (ART 19-22)

RIGHT AGAINST EXPLOITATION (ART 23-24)

RIGHT TO FREEDOM OF RELIGION (ART 25-28)

CULTURAL AND EDUCATIONAL RIGHTS (ART 29-30)

RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

ARMED FORCES AND FRS (ARTICLE 33)

MARTIAL LAW (ARTICLE 34)

LAWS AFFECTING FUNDAMENTAL RIGHTS (ARTICLE 35)

 Fundamental Rights: They are a branch of civil rights and are given higher importance in
India as they are defended by the Supreme Court directly. Some Fundamental Rights are confined to
citizens only while others are open to all. For example, Art. 15, 16, 19, 20 and 29 in the Chapter on
Fundamental Rights in the Indian Constitution (Part III) are available to India citizen only. They are
essential for human development, democracy and social progress.

Fundamental Rights of Citizens and Foreigner

Fundamental rights available to both citizens and foreigners except enemy aliens

Article 14– Equality before the law and equal protection of laws.

Article 20– Protection in respect of conviction for offences.

Article 21– Protection of life and personal liberty.

Article 21A– Right to elementary education.

Article 22– Protection against arrest and detention in certain cases.

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

Article 24– Prohibition of employment of children in factories etc.

Article 25– Freedom of conscience and free profession, practice and propagation of religion.

Article 26– Freedom to manage religious affairs.

Article 27– Freedom from payment of taxes for promotion of any religion.

Article 28– Freedom from attending religious instruction or worship in certain educational
institutions.

Fundamental Rights Available Only to Citizens of India

Article 15– Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Article 16– Equality of opportunity in matters of public employment.

Article 19– Protection of six rights related to freedom – (a) of speech and expression; (b) to assemble
peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the
territory of India; (e) to reside and settle in any part of the territory of India; and (f) to practice any
profession, or to carry on any occupation, trade or business.

Article 29– Protection of language, script and culture of minorities.

Article 30– Right of minorities to establish and administer educational institutions

 Right to Equality (Art 14-18)

The Rule of law is the foundation of Indian democracy that states that the laws apply in the same
manner to all, irrespective of a person’s status. It means that the Prime Minister of the country or a
poor farmer in a remote village is subject to the same law and equal treatment.

Article 14 states that the government shall not deny to any person, equality before the law or the
equal protection of the laws, which means:

Laws apply in the same manner to all;

No person is above the law;

Every citizen is subjected to the same laws and same treatment;

No person can legally claim any special treatment or privilege on any of the ground; and

Law makes no distinction between a political leader, a government official, and an ordinary citizen.

Prohibition of discrimination (Article 15)

 
State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or birth
place. ‘Discrimination’ means to make an adverse distinction with regard to’ or ‘to distinguish
unfavourably from others’ while ‘only’ word infers that discrimination on other grounds is not
prohibited.
No citizen shall be subjected to any disability, liability, restriction on grounds only of religion, reace,
caste, sex, or birth place with regard to (a) access to shops, public restaurants, hotels and places of
public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort
maintained wholly or partly by State funds or dedicated to the use of general public.
Exceptions
 Special provision for women and childlen. For e.g., reservation of seats for women in local
bodies or right to education.
 The state is permitted to make any special provision for the advancement of any socially and
any educationally backward classes of citizens or foe the SCs and STs. For example, reservation of
seats or fee concessions in public educational institutions.
 The state is empowered to make any special provision for the advancement of any
SEBC/SCs/STs regarding their admission to educational institutions including private educational
institutions, whether aided or unaided by the state, except the minority educational institutions.

Equality of opportunity in matters of public employment (Article 16)

 

 
 [1]. It deals with equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
[2]. No citizen shall, on grounds only of religion, race, caste, sex, descent, birth place, residence or
any of them, be ineligible for, or discriminated against in respect of, any employment or office under
the State.
[3]. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a
class or classes of employment or appointment to an office under the Government of, or any local or
other authority within, a State or Union territory, any requirement as to residence within that state or
Union territory prior to such employment or appointment.
[4]. Provision for the reservation of appointments or posts in favour of any backward class of citizen
which, in the opinion of the State, is not adequate represented in the services under the State.
[4A]. Nothing in this article shall prevent the State from taking any provision for reservation in
matters of promotion (77th CAA), with consequential seniority (85th CAA), to any class or
classes of posts in the services under State in favour of the SCs and Sts which, in the opinion of the
State, are not adequately represented in the services under the State.
[4B]. Carry Forward Rules: State can consider any unfilled vacancies of a year which are reserved
for being filled up in that year in accordance with any provision for reservation made under clause [4]
or [4A] as a separate class of vacancies to be filled up in any succeeding year or years and such
class of vacancies shall not be considered together with the vacancies of the year in which they are
being filled up for determining the ceiling of 50% reservation on total number of vacancies of that
year. (81st CAA, 2000).
In Indra Sawhney Vs. Union of India, (1992) after report from Mandal Commission, Supreme Court
held that reservation shall not exceed 50% except in some extra ordinary situation. This rule will need
to be applied every year. But in some states, it exceeds that limit. For example – The 76th
Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule
to protect it from judicial review as it provided for 69% reservation.
 
Article – 17 : Abolition of Untouchability
 
Absolute right (can’t be suspended at any time, available against private individual also, no
exception). Untouchability is not be taken literally but the practice as it had developed historically in
the country, imposing social restriction on certain classes of persons by reason of their birth in certain
castes.
A person convicted of the offence of ‘untouchability’ is disqualified for election to the Parliament or
state legislature. Under the Protection of Civil Rights Act (1955), the offences committed on the
ground of untouchability are as follows:
 Preventing any person from entering any place of public worship or from worshipping therein;
 justifying untouchability on traditional, religious, philosophical or other grounds;
 denying access to any shop, hotel or place of public entertainment;
 insulting a person belonging to scheduled caste on the ground of untouchability;
 refusing to admit persons in hospitals, educational institutions or hostels established for public
benefit;
 preaching untouchability directly or indirectly; and
 refusing to sell goods or render services to any person.
 
Article – 18 : Abolition of Titles
 
It abolishes titles and makes four provisions in that regards:
1. State can’t confer any title (except a military or academic distinction) on anyone.
2. No citizen of India shall accept any title from any foreign state.
3. A foreigner holding any office of profit or trust under the state cannot accept any title from any
foreign state without the consent of the president.
4. No citizen or foreigner holding any office of profit or trust under the State is to accept any
present, emolument or office from or under any foreign State without the consent of the president.
Basically it is dome to counter the colonial mentality, hereditary titles of nobility like Maharaja, Raja
Saheb, Raj Bahadur, etc, are banned because these are against the principle of equal status of all.
National awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri, were
discontinued by Morarji Desai government from 1977 to 1980. However, In 1996, Supreme Court
ruled that they are given on the basis of merit and do not amount to ‘titles’ within the meaning of
Article 18.
 
Right to Freedom (Art 19-22)
 

 
Protection of Six Rights [Article 19]:
Freedom of speech and expression [only on public grounds, peacefully and unarmed], profession
[doesn’t apply to dangerous and immoral professions], movement [only internal movement in country],
residence, assembly and associations [no right to strike]. A seventh right to acquire, hold and dispose
property was deleted and converted to legal right.
The rights are protected against action of state but not private individual. Also they are
available to citizens and shareholders of company but not aliens and legal persons viz.
Corporation, institutions.
The state can impose restrictions on these rights only on grounds specified here viz. security, unity,
sovereignty, integrity of India, friendly relations with foreign states, public order, decency or morality,
contempt of court, defamation, and incitement to an offence.
 
Protection in Respect of Conviction for Offences [Article 20]:
 
Protection against arbitrary and excessive punishments for offenses: It is available to citizens,
aliens and legal bodies. The provisions as per law is no retrospective criminal laws can be passed
[civil or tax laws are allowed], no person can be punished for same offense twice [not apply to
departmental proceedings], no person can be forced to be witness against self only in criminal
proceeding not civil.
 
Protection of Life and Personal Liberty [Article 21]: 
No person can be deprived life or liberty but as per procedure established by law but the law should
be reasonable, fair and just. This is available to citizens and aliens.
 
Right to Education [Article 21 A]: 
 
This provision guarantees free and compulsory education to all between age of 6-14 yrs. Only
elementary education is a right not higher education or professional.
 
Protection against Arrest and Detention [Article 22]: 
This article has two provisions preventive detention and punitive detention.
 Punitive detention is after a person is tried and convicted.
 Preventive detention is for preventing him from committing an offense in the future.
 If a person is arrested under ordinary law then he should be informed of reasons, can be
defended by lawyer, should be taken to magistrate in 24 hrs and should be released after 24 hrs
unless magistrate authorizes further detention.
 For preventive detention the maximum period for detention is 3 months unless an
advisory board of HC judges extends the period.
 Parliament and states can make laws for preventive detention. These laws can specify
the period of detention till which a person can be held without taking him to advisory board. What is
the max period of detention. Procedure to be followed by advisory board.
 
Right against Exploitation (Art 23-24)
 

 
Article 23 – Prohibition of traffic in human beings and forced labour
 
Article 23(1): Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in accordance with
law.
Article 23(2): Nothing in this article shall prevent the State from imposing compulsory service for
public purposes, and in imposing such service the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them.
 Exploitation implies the misuse of others’ services by force and/or labour without payment.
 There were many marginalised communities in India who were forced to engage in manual
and agricultural labour without any payment.
 Labour without payment is known as begar.
 Article 23 forbids any form of exploitation.
 Also, one cannot be forced to engage in labour against his/her will even if remuneration is
given.
 Forced labour is forbidden by the Constitution. It is considered forced labour if less-than-
minimum wage is paid.
 This article also makes ‘bonded labour’ unconstitutional.
 Bonded labour is when a person is forced to offer services out of a loan/debt that cannot be
repaid.
 The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless persons
into labour and forcing helpless women into prostitution is unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and women for illegal and immoral
activities.
 Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide scope
because of the inclusion of the terms ‘forced labour’ and ‘traffic’.
 Article 23 protects citizens not only against the State but also from private citizens.
 The State is obliged to protect citizens from these evils by taking punitive action against
perpetrators of these acts (which are considered crimes), and also take positive actions to abolish
these evils from society.
 Under Article 35 of the Constitution, the Parliament is authorized to enact laws to punish acts
prohibited by Article 23.
 Clause 2 implies that compulsory services for public purposes (such as conscription to the
armed forces) are not unconstitutional.
 Laws passed by the Parliament in pursuance of Article 23:
 Suppression of Immoral Traffic in Women and Girls Act, 1956
 Bonded Labour System (Abolition) Act, 1976
 
Article 24 – Prohibition of employment of children in factories, etc.
 
Article 24 says that “No child below the age of fourteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.”
 This Article forbids the employment of children below the age of 14 in any hazardous industry
or factories or mines, without exception.
 However, the employment of children in non-hazardous work is allowed.
 
 Right to Freedom of Religion (Art 25-28)
 

 
Ø Article 25 (Freedom of conscience and free profession, practice and propagation of religion)
 
1. Article 25 guarantees the freedom of conscience, the freedom to profess, practice and
propagate religion to all citizens.
2. The above-mentioned freedoms are subject to public order, health and morality.
 This article also gives a provision that the State can make laws:
1. That regulates and restricts any financial, economic, political or other secular activity
associated with any religious practice.
2. That provides for the social welfare and reform or opening up of Hindu religious
institutions of a public character to all sections and classes of Hindus. Under this provision, Hindus
are construed as including the people professing the Sikh, Jaina or Buddhist religions and Hindu
institutions shall also be construed accordingly.
1. People of the Sikh faith wearing & carrying the kirpan  shall be considered as included in the
profession of the Sikh religion.
 
Ø Article 26 (Freedom to manage religious affairs)
 
This Article provides that every religious denomination has the following rights, subject to morality,
health and public order.
1. The right to form and maintain institutions for religious and charitable intents.
2. The right to manage its own affairs in the matter of religion.
3. The right to acquire immovable and movable property.
4. The right to administer such property according to the law.
 
Ø Article 27 (Freedom as to payment of taxes for promotion of any particular religion)
 
According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are directly
used for the promotion and/or maintenance of any particular religion/religious denomination.
 
Ø Article 28 (Freedom as to attendance at religious instruction or religious worship in certain
educational institutions)
 
This article permits educational institutions that are maintained by religious groups to disseminate
religious instruction.
 This provides that no religious instruction shall be provided in State-run educational
institutions.
 Educational institutions administered by the State but that were established under any
endowment or trust which requires that religious instruction shall be imparted in such institutions is
exempt from the above clause (that no religious instruction shall be provided).
 Any person who attends any educational institution recognised by the State or receiving State
aid shall not be required to participate in any religious instruction that may be imparted in such
institution, or also attend any religious worship in such institutions unless he/she has given consent for
the same. In the case of minors, the guardians should have given consent for the same.
 
Cultural and Educational Rights (Art 29-30)
 

 
Cultural and Educational Rights protect the rights of religious, cultural and linguistic minorities, by
facilitating them to preserve their heritage and culture. Educational rights are for ensuring education
for everyone without any discrimination.
 This fundamental right intends to preserve the culture of all minority groups in India.
 Indian society is a composite heterogeneous one and its diversity is one of its strengths.
 The Constitution guarantees these rights to minorities so that the diversity of this country is
preserved and provides avenues for all groups including marginalised ones to protect, preserve and
propagate their culture.
 
Article 29 – Protection of interests of minorities
 
Article 29(1): This provides all citizen groups that reside in India having a distinct culture, language
and script, the right to conserve their culture and language. This right is an absolute right and there
are no ‘reasonable restrictions’ in the interest of the general public here.
Article 29(2): The State shall not deny admission into educational institutes maintained by it or those
that receive aids from it, to any person on the basis of race, religion, caste, language, etc. This right is
given to individuals and not any community.
 
Article 30 – Right of minorities to establish and administer educational institutions
 
This right is given to minorities to form and govern their own educational institutions. Article 30 is also
called the “Charter of Education Rights”.
Article 30(1): All religious and linguistic minorities have the right to establish and administer
educational institutions of their choice.
Article 30(2): The State should not, when granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a minority, whether based
on religion or language.
 
Right to Constitutional Remedies (Article 32)
 
 A person aggrieved by the violation of any of his/her fundamental right can approach either to
the Supreme Court (under Article 32) or High Court (under Article 226) for the restoration of his/her
fundamental right/s.
 The enforceability of rights is a very important aspect of all fundamental rights and hence, it is
called as the “Right to Constitutional Remedies.”
 According to Dr. Ambedkar, the right to constitutional remedies is the ‘heart and soul of the
Constitution.’
 If someone violates someone’s Fundamental Rights, then he/she can approach either a High
Court or directly the Supreme Court to get proper remedy.
 
  
 The Supreme Court or the High Court (as the case may be) can issue orders (known
as writs) and give directives to the Government for the enforcement of Fundamental Rights.
 Following are the five writs/orders issued by either the Supreme Court or High Courts:
 Habeas corpus: A writ of habeas corpus means that the court orders that the
arrested person should be presented before the court. The court can also order to set free an arrested
person if the manner and/or grounds of arrest are not lawful or satisfactory.
 Mandamus: This writ is issued when a court finds that a particular office holder is not
doing legal duty and thereby is infringing on the right of an individual.
 Prohibition: This writ is issued by a higher court (High Court or Supreme Court);
when a lower court has considered a case, which is going beyond its jurisdiction.
 Quo Warranto: If a court finds that a person is holding office but is not entitled to
hold that office, it issues the writ of quo warranto and restricts that person from acting as an office
holder.
 Certiorari: Under this writ, a higher court orders a lower court or another authority to
transfer a matter pending before it to the higher authority or court.
 
Armed Forces and Fundamental Rights (Article 33)
 
 It empowers the Parliament to restrict or abrogate the FRs of the members of armed forces,
para-military forces, police forces, intelligence agencies etc. (include employees who are non-
combatants), done for proper discharge of their duties and the maintenance of discipline. Under the
law, only Parliament can make laws to give the effect to them (Article 19), it cannot be challenged on
violation of any of the fundamental rights.
 A parliamentary law enacted under Article 33 can also exclude the court martial (tribunals
established under the military law) from the writ jurisdiction of the Supreme Court and the high courts,
so far as the enforcement of Fundamental Rights is concerned.
 
Martial Law (Article 34)
 
It imposes restrictions on fundamental rights while martial law is in force in any area within the territory
of India. Empower the Parliament to indemnify any government servant or others  for any act done by
him in connection with the maintenance or restoration of order in any area where martial law was in
force. So, Act of Indemnify made by the Parliament beyond Judicial Review only on violation of the
fundamental rights.
Martial Law: (military rule) Not described in Indian Constitution. Civil administration is run by the
military authorities according to their own rule and regulations framed outside the ordinary law,
implying suspension of ordinary law and the government by military tribunals. It is imposed under the
extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to
law to repel force by force for maintaining or restoring order in the society.
Abnormal powers including imposing restrictions and regulations on the rights of the civilians, can
punish the civilians and even condemn them to death. The Supreme Court held that the declaration of
martial law does not ipso facto result in the suspension of the writ of habeas corpus.
 
Difference with respect to National Emergency
 
 Martial law affect only Fundamental Rights, while national Emergency is broader in scope
affecting Centre State Relationship, Fundamental Rights, Legislative powers, Revenue distribution.
 Military law suspends ordinary law, But courts and government continues in National
Emergency.
 Martial law imposed to restore the breakdown of law and order due to any reason, while
National Emergency can be imposed only on three grounds (Article 352) i.e. War, External
aggregation or Armed rebellion.
 Martial law is always imposed only in some area of the country but National Emergency can
be in some area or the entire country.
 
Laws affecting Fundamental Rights (Article 35)
 
Power to make laws, to give effect to certain specific fundamental rights shall vest only in the
Parliament and not in the state legislatures, even if under state list to ensure uniformity
throughout India.
 Prescribing residence as a condition under Article 16.
 Empowering courts other than the Supreme Court and the High Courts to issue directions,
orders and writs of all kind for the enforcement of fundamental rights (Article 32).
 Restricting or abrogating the application of Fundamental Rights to members of armed forces
etc. (Article 33)
 Indemnifying any government servant or any other person for any act done during the
operation of martial law in any area (Article 34).
Parliament can also make laws for prescribing punishment for those acts that are declared to
be offences under the fundamental rights. These include the following:
 Untouchability – (Article 17)
 Traffic in human beings and forced labour – (Article 23)
 Law before independence will continue as such
 
 
 
 

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