FUNDAMENTAL RIGHTS

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 (i.e., Bill of Rights). Part III of
the Constitution is rightly described as the Magna Carta of India. It contains a very long and
comprehensive list of ‘justiciable’ Fundamental Rights. These rights are characterised by certain features
which may be as follows:

1. Integral part of the constitution

Fundamental are an integral part of the constitution. They cannot be altered or taken away by the
ordinary legislation. Any law passed by any legislature in the country could be declared null if it is
derogatory to the rights guaranteed by the constitution.
2. Detailed and comprehensive
The chapter in fundamental rights in the constitution is most comprehensive and elaborate. All
Articles included in this chapter is within an elaborate set of limitations and reservations.
3. Positive and Negative rights
Fundamental rights can be divided into two broad categories: namely, positive rights and negative
rights. Positive rights are those which infer privileges on the people: Right to liberty, equality or
freedom to express or worship. Etc comes under positive rights. Negative rights are which impose
certain restrictions on the state.
4. Fundamental rights are justifiable
Another feature of fundamental rights is that are justifiable. If any of these rights is violated, the
affected individual is entitled to move either to Supreme Court or High court for the protection and
enforcement of his rights.
5. Restrictive nature of fundamental rights
Fundamental rights, guaranteed in Part III of the constitution, are not absolute rights. They are
subjected to reasonable limitations provided in the constitution itself. Every right is permitted under
certain limitations and reasonable restrictions. It can be imposed at anytime for the longer interest
of the general community
6. Suspension of rights
The President of India may suspend to all or any of the fundamental rights during the emergency
operation. He may also suspend the right of the people to move the courts for the enforcement of
fundamental rights.
7. Citizens alone enjoy fundamental rights
Another feature of the fundamental rights is that some of the fundamental rights are available to
Indian citizens alone E.g. Art 15, 16,18,29,30. Rights relating to protection of life, freedom of religion,
and right against exploitation are guaranteed to every citizen with Indian or alien.
8. No natural or unenumerated rights
F.Rs in the Indian constitution is not based on the theory of natural rights. Besides that, Indian
constitution has left no scope for unenumerated rights.
9. Amendable
 In Kesavananda Bharati case the Supreme Court ruled that the fundamental rights can be
amendable under article 368, but subject to the condition that its “basic structure” cannot be
changed.

Classification of fundamental rights: The

constitution itself classifies the FRs under 7 groups:
1. Right to equality
2. Right to freedom
3. Right against exploitation
4. Right to freedom of religion
5. Cultural and Educational Rights
6. Right to property
7. Right to constitutional remedies

Out of these, “Right to property” has been deleted by 44th constitutional amendment (1978) and
consequently it is not a fundamental right now. A separate Article 31-A has been added to the
constitution to protect it as a constitutional right.

Right to Equality
The Right to Equality guaranteed by Articles 14 to 18 has two important elements:
(a) It subscribes to the ideal of equality of all human beings
(b) It also recognises that certain conditions viz a person’s caste, restrict equality in real life.
 It implies that equality should not be merely formal but adequate and positive steps
should be taken by the state to make it substantive.

Article 14 declares that “the state shall not deny to any person equality before the law or equal
protection of laws within the territory of India”. ‘Equality before law’ is an expression of English common
law, while ‘equal protection of laws’ owes to the American Constitution.

‘Equality before law’ is a negative concept implying the absence of any special privilege in favour of any
individual. Equal protection of laws is a positive concept, implying equality of treatment in equal
circumstances. It is the second corollary of Dicey’s concept of the ‘Rule of law’. It means that no man is
above the law of the land and that every person is subject to ordinary law. But certain exceptions are
recognised to the above rule of equality in the public interests e.g., the exercise and performances of the
power and duties of the President of India or governors of states.

‘Equal protection of laws’ is borrowed from the American constitution .It means the right to equal
treatment in similar circumstances both in the privileges conformed and in the liabilities imposed by the
laws.

Article 15 assures that 'the State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth'.
Article 16 guarantees 'equality of opportunity in matters of public employment'. It assures a formal
equality of status among individuals. The only exceptions to the above rule of equality are:

 In order to make this formal status effective, the articles carry clauses which aim at erasing
inequalities which are brought about by circumstances of caste, gender, religion etc. Thus,
Clause 3 in Article 15 reserves for the State the discretion to provide special provisions for
women and children. Clause 4 added by the Constitution (First Amendment)
 Residence within the state may be laid down by parliament as a condition for particular classes
of employment;
 The state may reserve any post of appointment in favour of any backward class of citizens, who
are not adequately represented in the services under the state.
 Act, 1951 authorises the state to make special provisions for the advancement 'of the socially and
educationally backward classes of citizens, i.e., for the Scheduled Castes and Scheduled Tribes.

Article 17 abolishes 'untouchability', and forbids its practice in any form. The Untouchability (Offences)
Act 1955 and its later form, Protection of Civil Rights Act, 1976, are the parliamentary laws which have
sought to give effect to this principle in the Constitution.

Article 18 prohibits the state to confer titles on anybody, whether Indian or alien. Military and academic
distinctions are exempted from this prohibition. In 1954, the Government of India introduced decorations
of four categories, namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri. These
awards are mere state recognitions of good work by citizens in various fields of activity. There was a
vehement criticism from some quarters that the introduction of these awards violates Article 18.

RIGHT TO FREEDOM
The Right to Freedom constituted by Articles 19 gives six basic freedoms:
(a) freedom of speech and expression;
(b) freedom to assemble peaceably and without arms;
(c) freedom to form associations or unions;
(d) freedom to move freely throughout the territory of India;
(e) freedom to reside and settle in any part of the territory of India; and
(f) Freedom to practice any profession, or carry on any occupation, trade or business.

Clauses 2 to 6 of the Article subject these freedoms to 'reasonable restrictions' by the state. The state is
thus empowered to restrict these freedoms in the interest of the 'sovereignty and integrity of India',
'security of the state', 'public order', and 'general interest of the public'.

Articles 20, 21 and 22 give to citizens 'protection in respect of conviction of offences', 'protection of life
and personal liberty' and 'protection against arrests and detention in certain cases', respectively.

Article 22 provides for certain 'protections' or rights of the arrested or detained persons viz., right to be
informed of the grounds of arrest, right to consult and be defended by a lawyer, right to be presented
before a magistrate within 24 hours etc. These rights are, however, withheld from 'enemy aliens' and
persons who are 'arrested or detained under any law providing for preventive detention' [Article 22,
Clause 3(b)]. It is thus ironical that the fundamental right to freedom carries within itself the conditions
under which it can be dismantled. The history of the numerous laws of Preventive Detention in India from
the Maintenance of Internal Security Act (MISA, 1971) through National Security Act (NSA, 1980) and
Terrorist and Disruptive Activities (prevention) Act (TADA, 1985), has shown that more often than not
these laws have been used by the ruling powers indiscriminately. Often they have been used to quell
political opposition and for purposes other than those stated as the objects of the Acts.

RIGHT AGAINST EXPLOITATION

Articles 23 and 24 are categorised as Right against Exploitation and assure important guarantees
against 'traffic in human beings' and 'forced labour'. Slavery and other forms of servitude like 'begar' and
'bonded labour' have violated the dignity of entire communities or groups of people held in servility for
generations.

Article 23 is significant since it protects the right of children below 14 years against employment in
factories, mines or other hazardous workplaces. It is important to point out again that despite these
Constitutional provisions, exploitation of child labour in life-threatening and debilitating conditions, like
fireworks industry and carpet making industry, continues unabated.

RIGHT TO CONSTITUTIONAL REMEDIES

Articles 32, 33, 34 and 35 titled Right to Constitutional Remedies give to the citizens the right to move
the Supreme Court 'for the enforcement of the rights conferred' in Part 3 of the Constitution (Article 32).
They also confer on the Parliament the power to modify the Fundamental Rights in their application to
the Armed Forces or in areas under Martial Law and also to enact laws to give effect to the Fundamental
Rights.

RELIGIOUS AND MINORITY RIGHTS

Articles 25 to 30 concerned with freedom of religion and minority rights assuring freedom of conscience,
the freedom to religious communities to establish and maintain religious institutions and to 'manage
their own affairs in matters of religion', to acquire and administer property, impart religious education,
preserve their language, script, culture etc. This cluster of rights deals explicitly with the rights of
religious and cultural communities and minority groups and also forms the basis of the rights of religious
communities to administer them in civil matters, i.e., matters relating to marriage, divorce, property,
custody, inheritance etc, by their own 'personal laws'.

Right to constitutional remedies

A declaration of fundamental rights is meaningless without effective machinery for the enforcement of
rights. This is provided in Article 32, which adopts special provisions guaranteeing the right to
constitutional remedies. It guarantees the individual right to move the Supreme Court by appropriate
proceedings for the enforcement of his fundamental rights. The second section of this Article empowers
the Supreme Court to issue directions or orders or writs.

Further, the parliament may by law, empower any other court to exercise all or any of the powers
exercisable by the Supreme Court without prejudice to the powers of the Supreme Court. The right to
constitutional remedies may be suspended as provided by the Constitution under Articles353 and 359.
The importance of this Article 32 was quite realized in the Constituent Assembly, and majority of the
members agreed that, “it is the very soul of the Constitution and the very heart of it”

Writs mentioned in the Constitution

a) Habeas Corpus
The term literally means, “You may have the body” In India the power to issue a writ of Habeas Corpus
is vested only in the Supreme Court and the High Courts. It is issued in the nature of an order calling upon
the person who has detained another to produce the latter before the court to let the court know on
what ground he has been confined and to set him free if there is no legal justification for the
imprisonment.

b) Mandamus
It literally means ‘command’. The writ of mandamus is an order of the High Court or the Supreme Court
commanding a person or a body to do that which is his, or its, duty to do. Usually it is an order directing
the performance of ministerial acts. A ministerial act is one which a person or body obliged by law to
perform under given circumstances.

c) Prohibition
Prohibition is a writ issued by the Supreme Court or High court to an inferior court forbidding the latter to
continue proceedings therein in excess of its jurisdictions or to usurp a jurisdiction with which it is not
legally vested. The object of the writ is to compel inferior courts to keep themselves within the limits of
their jurisdiction.

d) Certiorari
It is a prerogative writ which orders the removal of a suit from an inferior court to a superior court. It
may be used before trial to prevent an excess or abuse of jurisdiction and to remove the case for trial to a
higher court.
Prohibition and certiorari are both issued against courts or tribunals exercising judicial or quasi-
judicial powers. Certiorari is issued to quash the order or decision of the tribunal, while prohibition is
used to prohibit the tribunal from making the ultra vires order or decision. While prohibition is available
at an earlier stage, certiorari is available at a later stage, on similar grounds.

e) Quo warranto
It is a proceeding whereby the court enquires in to the legality of the claim which a party assents to a
public office and to oust him from its enjoyment if the claim be not well founded. The fundamental basis
of the proceeding of quo warranto is that the public has an interest to see that an unlawful claimant
does not usurp a public office. Article 32 provides a guaranteed remedy for the enforcement of
fundamental rights and this remedial right is itself made fundamental by being included in Part III. The
court is, constituted the protector and guarantor of the fundamental rights. The Indian Constitution by
providing this right that is, by making that remedial right itself a guaranteed fundamental right has gone
a step further than most of the constitutions of the world.

CRITICISM OF FUNDAMENTAL RIGHTS

 They are subjected to innumerable exceptions, restrictions, qualifications and explanations. Hence,
the critics remarked that the Constitution grants Fundamental Rights with one hand and takes them
away with the other.
 The list is not comprehensive as it mainly consists of political rights. It makes no provision for
important social and economic rights like right to social security, right to work, right to employment,
right to rest and leisure and so on. These rights are made available to the citizens of advanced
democratic countries. Also, the socialistic constitutions of erstwhile USSR or China provided for such
rights.
 They are stated in a vague, indefinite and ambiguous manner. The various phrases and words used in
the chapter like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not
clearly defined. The language used to describe them is very complicated and beyond the
comprehension of the common man. It is alleged that the Constitution was made by the lawyers for
the lawyers.
 They are not sacrosanct or immutable as the Parliament can curtail or abolish them, as for example,
the abolition of the fundamental right to property in 1978. Hence, they can become a play tool in the
hands of politicians having majority support in the Parliament. The judicially innovated ‘doctrine of
basic structure’ is the only limitation on the authority of Parliament to curtail or abolish the
fundamental right.
 The suspension of their enforcement during the operation of National Emergency (except Articles 20
and 21) is another blot on the efficacy of these rights. This provision cuts at the roots of democratic
system in the country by placing the rights of the millions of innocent people in continuous jeopardy.
According to the critics, the Fundamental Rights should be enjoyable in all situations–Emergency or
no Emergency.
 The judiciary has been made responsible for defending and protecting these rights against the
interference of the legislatures and executives. However, the judicial process is too expensive and
hinders the common man from getting his rights enforced through the courts. Hence, the critics say
that the rights benefit mainly the rich section of the Indian Society.
 The critics assert that the provision for preventive detention (Article 22) takes away the spirit and
substance of the chapter on fundamental rights. It confers arbitrary powers on the State and negates
individual liberty. It justifies the criticism that the Constitution of India deals more with the rights of
the State against the individual than with the rights of the individual against the State. Notably, no
democratic country in the world has made preventive detention as an integral part of their
Constitutions as has been made in India.

SIGNIFICANCE OF FUNDAMENTAL RIGHTS

 They constitute the bedrock of democratic system in the country.
 They provide necessary conditions for the material and moral protection of man.
 They serve as a formidable bulwark of individual liberty.
 They facilitate the establishment of rule of law in the country.
 They protect the interests of minorities and weaker sections of society.
 They strengthen the secular fabric of the Indian State.
  They check the absoluteness of the authority of the government.
 They lay down the foundation stone of social equality and social justice.
 They ensure the dignity and respect of individuals.
 They facilitate the participation of people in the political and administrative process.

DIRECTIVE PRINCIPLES OF STATE POLICY

The Concept of DPSP is not an indigenous one. Our Constitution makers borrowed this concept from Irish
Constitution (Article 45), it has its genesis in Spanish Constitution. Part IV of the Constitution of India
deals with Directive Principles of State Policies. To understand the meaning of the directive principle of
state policy, we need to understand the meaning of each word i.e. Directive + principle + state +
policy which suggest that these are the principles that direct the state when it makes policies for its
people. These DPSPs act as a guideline for the state and are needed to be taken into consideration while
coming up with any new law but a citizen cannot compel the state to follow DPSPs .

Articles 36 to 51 in Part IV of the Constitution constitute the Directive Principles of State Policy. The
Directive Principles are different from Fundamental Rights in the sense that they are not 'enforceable' by
any Court (Article 37). The Directive Principles are addressed to the State and do not automatically vest
in the citizens as a matter of right. They are (Article 37), 'fundamental in the governance of the country'
and the state is expected to 'apply these principles in making laws'.

The Directive Principles envisage an active role of the State in providing a range of socially ameliorative
or welfare rights. These include access to an adequate means of livelihood, equal pay for equal work,
health and strength of workers, living wage for workers, provision of just and humane conditions of
work, right to work, to education, to public assistance, to equal justice and free legal aid, to adequate
nutrition and health etc.

Article 36 Defines State as same as Article 12 unless the context otherwise defines.
Article 37 Application of the Principles contained in this part.
Article 38 It authorizes the state to secure a social order for the promotion of the welfare
Article 39 Certain principles of policies to be followed by the state.
Article 39A Equal justice and free legal aid.
Article 40 Organization of village panchayats.
Article 41 Right to work, to education and to public assistance in certain cases.
Article 42 Provision for just and humane conditions of work and maternity leaves.
Article 43 Living wage etc. for workers.
Article 43-A Participation of workers in management of industries.
Article 43-B Promotion of cooperative societies.
Article 44 Uniform civil code for the citizens.
Article 45 Provision for early childhood care and education to children below the age of six
Article 46 Promotion of education and economic interests of SC, ST, and other weaker

Article 47 Duty of the state to raise the level of nutrition and the standard of living and
Article 48 Organization of agriculture and animal husbandry.
Article 48-A Protection and improvement of environment and safeguarding of forests and
Article 49 Protection of monuments and places and objects of national importance.
Article 50 Separation of judiciary from the executive.
Article 51 Promotion of international peace and security.

CRITICISM
 The Directives have been criticised mainly because of their non-justiciable character. The courts
of India have no power to enforce them. The DPs have been described by K.C.Wheare as a
“manifesto of aims and aspirations”.
 Critics opine that the Directives are not arranged in a logical manner based on a consistent
philosophy. According to Sir Ivor Jennings ‘Part IV of the Constitution expresses Fabian Socialism
without the socialism’.
 Ivor Jennings has expressed that fundamental rights as well as DPs are “based on no consistent
philosophy” According to Sreenivasan, the formulation of the directives of the state policy can
hardly be considered inspiring. It is both vague and repetitive.
 K Santhanam has pointed out that the Directives lead to a constitutional conflict
(a) between the Centre and the states,
(b) between the President and the Prime Minister, and
(c) Between the governor and the chief minister.

Just because of the DPs are not legally enforceable it would be rather cynical to say that, they are no
more than “a parade of high sounding sentiments couched in vain glorious verbiage”. Nevertheless, their
incorporation in the constitution has been justified by a consensus of opinion, as well as the working of
the constitution since 1950.The real importance of DPs is that they contain the positive obligations of the
state towards its citizens. If the fundamental rights guarantee a political democracy in India, the
directive principles ensure the eventual emergence of an economic democracy, to sustain the former.

FUNDAMENTAL DUTIES

Following the recommendations of Swaran Singh

Committee, Part IV A on Fundamental Duties was added to
the Constitution. It consists of a single Article (51 A)
containing a charter of ten Fundamental Duties for citizens.
The Fundamental Duties are in the nature of instructions,
but addressed to the citizens; they too have no legal sanction in the sense that the State is not expected
to monitor the citizens to see if the duties are being carried out.

Gandhiji attach far greater importance to duties than rights. Rights are the opportunity for self-
realization. The way to self -realization is the realization of one’s spiritual unity with others. Thus every
right is the right to do one’s duty. To quote Gandhiji “....the right to perform one’s duties is the only right
that worth living for and dying for. It covers all legitimate rights”.
D.D.Vasu is of the view that, “ the legal utility of the fundamental duties is similar to that of the
Directives as they stood in the Constitution of 1950, while the directives were addressed to the state
without any sanction, so are the duties addressed to the citizens ,without any legal sanction for their
violation.”

The underlying principle of Fundamental Duties appears to be that the individual exercising their must
respect the rights of other members of the community. Although there are no provisions in the
Constitution for their enforcement, any law seeking to prohibit the violation of Fundamental Duties, can
be upheld by the Courts, even if the law restricts a Fundamental Right.

According to Article 51A, it shall be the duty of every citizen of India:

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the
National Anthem;
(b) to cherish and follow the noble ideals that inspired the national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities and to renounce practices
derogatory to the dignity of women;
(f) to value and preserve the rich heritage of the country’s composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and
to have compassion for living creatures;
(h) to develop scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement; and
(k) to provide opportunities for education to his child or ward between the age of six and fourteen
years. This duty was added by the 86th Constitutional Amendment Act, 2002.

Implications of Inclusion of Fundamental Duties

 The insertion of a specific section on duties lays down some obligations which a citizen is expected to
fulfill while enjoying their Fundamental Rights.
 It also declares adherence to Article 29 (1) of the Universal Declaration of Human Rights which holds
that 'Everyone has duties to the community in which alone the free and full development of his
personality is possible'. The Constitutions of Japan, USSR and China have separate charters on Rights.
 It may be mentioned that irrespective of the specific duties added by Article 51 A, the Constitution
shows an expectation of 'responsible' participation by the people. The pledge to constitute India into
a 'Sovereign, Socialist, Secular, Democratic Republic' involves 'securing to all its citizens' justice,
liberty, equality and fraternity. This in turn is geared towards achieving the 'dignity of the individual'
and 'national integrity'.
 Even before the insertion of Article 51 A, therefore, the Supreme Court observed that it was 'fallacy
to think that under our Constitution there are only rights and no duties. The provisions in Part IV
 enable the Legislatures to impose various duties on the citizens. The mandate of our Constitution is
to build ' a welfare society and that object may be achieved to the extent that Directive Principles are
implemented by legislation.

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