Characteristics of Fundamental Rights

The features of Fundamental Rights in the Indian Constitution are as follows:

 Some of these rights are available only to citizens, while others are available to all
persons whether citizens, foreigners, or legal persons like corporations, companies, etc.
 These rights are not absolute but qualified, which means the state can impose reasonable
restrictions on them. This balances individual liberties with societal needs.
 All these rights are available against the arbitrary action of the state. However, some of
them are also available against the actions of private individuals.
 Some of these rights are negative in character as they place limitations on the authority
of the State, while others are positive in nature as they confer certain privileges on
individuals.
 These rights are enforceable by the courts, allowing citizens to seek legal remedies if
their rights are violated. This ensures that individuals have access to justice and can hold
the government accountable for its actions.
 These rights are protected and safeguarded by the Supreme Court. Hence, the aggrieved
person can directly proceed to the Supreme Court without necessarily appealing against
the judgment of the high courts.
 These rights are not considered sacrosanct or permanent. They can be amended by the
Parliament through a constitutional amendment process, provided such amendments do
not violate the basic structure of the Constitution.
 During a state of national emergency, certain rights can be suspended by the President,
except those guaranteed under Articles 20 and 21.
 The Parliament can restrict or abrogate the application of these rights on the members of
the armed forces, para-military forces, police forces, intelligence agencies, and
analogous services (Article 33).
 During the operation of martial law in any area, the application of these rights can be
restricted (Article 34).
 Most of them are directly enforceable, while others can be enforced based on a law
specifically made to give effect to them. Only Parliament can enact laws regarding these
rights to ensure uniformity across the nation (Article 35).

Fundamental Rights under the Indian Constitution – A Detailed Overview

The provisions related to the Fundamental Rights are mentioned in Articles 12 to 35 in Part III
of the Indian Constitution. Below is a detailed overview of these provisions:

Definition of State (Article 12)

Article 12 defines the term ‘State’ for Part III. Accordingly, the State includes the following:

 The Government and Parliament of India, that is, the executive and legislative organs of
the Union government,
 The Government and Legislature of States, that is, the executive and legislative organs of
the State government,
 All local authorities, that is, municipalities, panchayats, district boards, improvement
trusts, etc.
 All other authorities, that is statutory or non-statutory authorities like LIC, ONGC, SAIL,
etc.

The actions of all these agencies can be challenged in court for violating the fundamental
rights of Indian Constitution.
Laws Inconsistent with or in Derogation of the Fundamental Rights (Article 13)

 Article 13 provides that all laws that are inconsistent with or in derogation of any of the
fundamental rights shall be void.
o This provision under Article 13 expressively provides for the doctrine of judicial
review.
o The power of Judicial Review has been conferred on the Supreme Court under
Article 32 and the High Courts under Article 226.
 The term ‘law’ in Article 13 includes the following which can be declared void on the
grounds of violating a Fundamental Right
o Permanent laws enacted by the Parliament or the State Legislatures,
o Temporary laws like ordinances issued by the President or the State Governors,
o Statutory instruments like any delegated legislation, ordinance, order, bye-law,
rule, regulation, or notification.
o Non-legislative sources of law i.e. custom or usage having the force of law.
 Article 13 provides that a constitutional amendment is not a law and cannot be
challenged on the ground of contravention of any of the Fundamental Rights. However,
the Supreme Court in Kesavananda Bharati case 1973 held that a Constitutional
Amendment can be challenged on the ground that it violates a fundamental right.

Right to Equality (Article 14 to Article 18)

These provisions of the Indian Constitution ensure equal treatment and opportunities for all
citizens before the law. This right includes the following

Equality before Law and Equal Protection of Laws (Article 14)

This provision ensures that the state shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India. It prohibits arbitrary discrimination by
the state and guarantees equal treatment under similar circumstances.

Prohibition of Discrimination on Certain Grounds (Article 15)

This provision prohibits discrimination on grounds only of religion, race, caste, sex, or place of
birth. It ensures that no citizen shall be subjected to any disability, liability, or restriction only on
these grounds.

Equality of Opportunity in Public Employment (Article 16)

This provision guarantees equality of opportunity in matters of public employment or

appointment. It prohibits discrimination in these matters only on grounds of religion, race, caste,
sex, descent, place of birth, or residence.

Abolition of Untouchability (Article 17)

This provision abolishes untouchability and prohibits its practice in any form. It recognizes
untouchability as a social evil and ensures the eradication of this discriminatory practice in
Indian society.

Abolition of Titles (Article 18)

This provision prohibits the state from conferring titles, except military and academic
distinctions, on individuals. It also makes certain provisions regarding accepting any title,
present, emolument, or office from or under any foreign State.

Aspirants can find more details on Right to Equality (Article 14 to Article 18) in the linked
article.

Right to Freedom (Article 19 to Article 22)

These provisions of the Indian Constitution safeguard various individual liberties and freedoms.
This right includes the following:

Protection of Six Rights (Article 19)

This article guarantees to all citizens the following six rights:

Freedom of Speech and Expression (Article 19(1)(a))

This provision grants citizens the freedom to express their views, opinions, beliefs, and
convictions freely through speech, writing, printing, or any other mode. However, reasonable
restrictions can be imposed by the state on grounds such as public order, defamation, incitement
to offense, etc.

Freedom of Assembly (Article 19(1)(b))

Citizens have the right to assemble peacefully without arms. It includes the right to hold public
meetings, demonstrations, and take-out processions, but does not include the right to strike.

Freedom of Association (Article 19(1)(c))

Individuals have the right to form associations, unions, or cooperative societies, enabling them
to collectively pursue common interests or goals. However, reasonable restrictions can be
imposed in the interest of public order, morality, or the sovereignty and integrity of India.

Freedom of Movement (Article 19(1)(d))

Every citizen has the right to move freely throughout the territory of India. Reasonable
restrictions can be imposed on this right on the grounds of the interests of the general public and
the protection of the interests of any scheduled tribe.

Freedom of Residence (Article 19(1)(e))

Citizens have the freedom to reside and settle in any part of India, allowing for geographical
mobility and the exercise of individual choice in determining one’s place of residence.

Freedom of Profession (Article 19(1)(g))

Individuals have the right to practice any profession or to carry on any occupation, trade, or
business of their choice, subject to certain restrictions imposed in the interest of the general
public.
Note: Originally, the right to acquire, hold, and dispose of property was one of the fundamental
rights enshrined in Article 19(1)(f) of the Indian Constitution. However, the 44th Amendment
Act of 1978 removed this right from the list of fundamental rights and placed it under Article
300A as a constitutional right.

Protection in Respect of Conviction for Offenses (Article 20)

It grants protection against arbitrary and excessive punishment to an accused person, whether a
citizen, a foreigner, or a legal person. It contains three provisions in this regard:

Protection against Retrospective Criminal Legislations (Article 20(1))

Any individual can be convicted only for violation of a law in force at the time of commission of
the act. Also, the person cannot be subjected to a penalty greater than that prescribed by the law
in force at the time of the commission of the act.

Protection against Double Jeopardy (Article 20(2))

A person cannot be tried and punished again for an offense for which they have already been
either acquitted or convicted.

Protection against Self-Incrimination (Article 20(3))

No person accused of an offense shall be compelled to be a witness against oneself.

Protection of Life and Personal Liberty (Article 21)

This provision guarantees that no person shall be deprived of their life or personal liberty except
according to the procedure established by law. This right is available to both citizens and non-
citizens and serves as a cornerstone of individual rights.

Right to Education (Article 21A)

This provision guarantees the right to free and compulsory education for children aged 6 to 14
years. It mandates the State to provide access to quality education, ensuring that every child has
the opportunity to receive education without any discrimination. This provision was added by
the 86th Constitutional Amendment Act of 2002.

Protection Against Arrest and Detention (Article 22)

This provision ensures certain protections to persons who are arrested or detained, including the
right to be informed of the grounds of arrest, the right to consult and be defended by a legal
practitioner, and the right to be produced before a magistrate within 24 hours of arrest. It
prevents arbitrary detention and ensures fair treatment of individuals in custody.

Aspirants can find more details on Right to Freedom (Articles 19–22) in the linked article.

Right Against Exploitation (Article 23 to Article 24)

These provisions of the Indian Constitution provide certain safeguards to protect people,
especially vulnerable sections, from exploitation. Various rights included under this are:
Prohibition of Traffic in Human Beings and Forced Labour (Article 23)

This provision prohibits human trafficking and forced labor. It makes such acts punishable
offenses.

Prohibition of Employment of Children in Factories (Article 24)

This provision prohibits the employment of children under the age of fourteen in any factory,
mine, or other hazardous activities. However, it does not prohibit their employment in any
harmless or innocent work.

Aspirants can find more details on Right against Exploitation (Articles 23–24) in the linked
article.

Right to Freedom of Religion (Article 25 to 28)

These provisions of the Indian Constitution guarantee individuals the freedom to profess,
practice, and propagate the religion of their choice. It ensures secularism by mandating that the
state maintain neutrality and treat all religions equally.

Freedom of Conscience and Free Profession, Practice, and Propagation of Religion (Article
25)

This article says that all persons are equally entitled to freedom of conscience and the right to
freely profess, practice, and propagate religion. The implications of these are:

Freedom of conscience

Individuals have the freedom to shape their relationship with God and other creatures in
whatever way they desire.

Right to Profess

To declare one’s religious beliefs and faith openly and freely.

Right to Practice

To perform religious worship, rituals, ceremonies, and exhibition of beliefs and ideas.

Right to Propagate

To transmit or disseminate one’s religious beliefs to others. However, it does not include a right
to convert another person to one’s religion.

Freedom to Manage Religious Affairs (Article 26)

This provision states that every religious denomination or its section shall have the following
rights-

 Right to establish and maintain institutions for religious and charitable purposes,
 Right to manage its affairs in matters of religion,
 Right to own and acquire movable and immovable property, and
  Right to administer such property as per law.

Freedom from Taxation for Promotion of a Religion (Article 27)

This provision prohibits the State from levying taxes for promoting or maintaining any particular
religion or religious denomination. It upholds the principle of secularism and ensures that the
State remains neutral in matters of religion, fostering equality and religious freedom for all
citizens.

Freedom from Attending Religious Instruction (Article 28)

It makes provisions for religious instruction in different categories of educational institutions, as

described below:

 Institutions wholly maintained by the State- religious instruction is completely

prohibited.
 Institutions administered by the State but established under any endowment or trust –
religious instruction is permitted.
 Institutions recognized by the State- religious instruction is permitted on a voluntary
basis i.e. with the consent of the person.
 Institutions receiving aid from the State- religious instruction is permitted on a voluntary
basis i.e. with the consent of the person.

Cultural and Educational Rights (Article 29 to Article 30)

These provisions of the Indian Constitution safeguard the rights of minorities to conserve their
culture, language, and script.

Protection of Interests of Minorities (Article 29)

It provides that:

 Any section of citizens having a distinct language, script, or culture of its own, shall have
the right to conserve the same.
 No citizen shall be denied admission into any educational institution maintained by the
state or receiving aid out-of-state funds on grounds only of religion, race, caste, or
language.

As noted by the Supreme Court, the use of the phrase ‘section of citizens’ in the Article means
that it applies to minorities as well as the majority. Thus, the scope of this article is not
necessarily restricted to minorities only.

Right of Minorities to Establish and Administer Educational Institutions (Article 30)

This provision grants minorities (both religious as well as linguistic) certain rights, such as the
right to establish and administer educational institutions of their choice, the right to impart
education to their children in its own language, etc.

It is to be noted that the protection under this provision is confined only to minorities (religious
or linguistic) and does not extend to any section of citizens (as under Article 29).

Right to Constitutional Remedies (Article 32)

It confers the right to remedies for the enforcement of the fundamental rights in case of violation
of the same. It makes the following provisions regarding the same:

 The right to move the Supreme Court for the enforcement of the Fundamental Rights is
guaranteed.
 The Supreme Court shall have the power to issue directions, orders, or writs
 for the enforcement of fundamental rights.
 The Parliament can empower any other court to issue directions, orders, or writs for the
enforcement of fundamental rights.
 The right to move the Supreme Court shall not be suspended except as otherwise
provided for by the Constitution.
o These provisions give the right to get the Fundamental Rights protected, making
the Fundamental Rights real.

Aspirants can find more details on Right to Constitutional Remedies (Article 32) in the
linked article.

Armed Forces (Article 33)

 This provision empowers Parliament to enact laws that restrict or modify the application
of certain fundamental rights for members of the armed forces, police forces, intelligence
agencies, or similar forces tasked with the maintenance of public order.
 The objective of this provision is to ensure the proper discharge of their duties in the
interest of national security and the maintenance of discipline among them.

Martial Law (Article 34)

 This provision provides for restrictions on fundamental rights during the operation of
martial law in any area within the territory of India.
 However, the expression ‘martial law’ has not been defined anywhere in the
Constitution.

Legislation to Give Effect to the Provisions of this Part (Article 35)

This provision specifies that Parliament alone has the authority to enact laws aimed at
implementing certain fundamental rights. This ensures uniformity across India concerning the
nature of these rights and penalties for their violation.

Nature of Fundamental Rights

 Fundamental Rights in India are inherent, inalienable, and designed to uphold

individual dignity and the collective welfare of society.
 They act as limitations on state power, ensuring a balance between authority and
freedom.
 These rights are justiciable, allowing individuals to approach courts in case of violations.
 While they are universal and enforceable, they are not absolute and can be restricted
under reasonable conditions to safeguard public order, morality, and national security.
 This dynamic and progressive nature ensures that they adapt to the changing needs of
society.

Significance of Fundamental Rights

The Fundamental Rights of the Indian Constitution are significant in the following respects:

 They form the bedrock of the democratic system and facilitate people’s participation in
the politico-administrative process.
 They serve as bulwarks of individual liberty and the rule of law by keeping a check on
the authoritarianism of the state.
 They lay down the foundation of social justice and ensure the dignity of individuals.
 They protect the interests of minorities and weaker sections, thus promoting social
justice.
 They strengthen the secular fabric of the nation.

Criticism of the Fundamental Rights

 Excessive Limitations – They face numerous exceptions, restrictions, and qualifications,

imposing restrictions on their scope and effectiveness.
 No Social and Economic Rights – The list lacks comprehensiveness, focusing primarily
on political rights without including essential social and economic rights such as the right
to social security, employment, rest, leisure, etc.
 No Clarity – There is a lack of clarity as a few terms are expressed vaguely and
ambiguously without a clear definition, for example- ‘public order’, ‘minorities’,
‘reasonable restrictions’, etc.
 No Permanency – They are not sacrosanct or absolute, as the Parliament can curtail or
abolish them, for example – the abolition of the fundamental right to property in 1978.
 Suspension during Emergency – The suspension of fundamental rights during a
National Emergency, except for Articles 20 and 21, undermines the essence of
democracy, posing a threat to the rights of millions of innocent individuals.
 Expensive Remedy – The judiciary bears the burden of safeguarding these rights from
legislative and executive encroachments. However, the costly nature of the judicial
process impedes ordinary citizens from effectively enforcing their rights through the
courts.
 Preventive Detention – The provision of preventive detention (Article 22) undermines
the essence of fundamental rights, granting excessive discretion to the State and
infringing upon individual liberty.
 No consistent philosophy – The fundamental rights chapter lacks a coherent
philosophical foundation. According to Sir Ivor Jennings, these rights are not grounded
in any consistent philosophy, posing challenges for the judiciary in their interpretation.

Fundamental Rights represent the essence of Indian democracy, serving as the bulwark against
arbitrary state actions and ensuring the protection and empowerment of its citizens. Despite
criticisms and limitations, these rights stand as a beacon of justice, equality, and freedom,
fostering a society where the dignity and rights of every individual are upheld and respected. As
India continues its journey towards progress and development, the preservation and effective
implementation of these rights remain imperative, guiding the nation towards a future rooted in
democracy, inclusivity, and human rights.