Fundamental Rights, Articles, Types, Functions Explained

Fundamental Rights Introduction

• There is a historical reason for the inclusion of Fundamental Rights in our Constitution. The Indian National Congress had been, from
time to time, proclaiming its resolve to frame the Constitution of India on the basis of human rights.

• The National Congress, in its Madras Session in 1928 and in its Karachi Session in 1933 and on many other occasions raised the question of securing Fundamental Rights to the people of India but the British authorities did not show any inclination in this direction.

• The Congress leaders who got elected to the Constituent Assembly took it an opportunity to include a chapter on Fundamental Rights in the Constitution.

• Our Constitution followed the American precedent and enacted Fundamental Rights and also provided effective means for their enforcement. It was done by way of equipping the Supreme Court and the High Courts with the power to issue writs of Habeas Corpus, Mandamus Prohibition, Quo-warranto etc.

• The Constitution went a step further and by Article 32 made the right to move the Supreme Court for appropriate writ as a Fundamental Right.

The Constitution of India incorporates the Fundamental Rights which form Part III of the Constitution.

The Part III of the Constitution consists of 26 Articles which are arranged under the following subheadings:

1. Right to Equality (Articles 14 to 18)

2. Right to Freedom (Articles 19 to 22)

3. Right against Exploitation (Article 23 & 24)

4. Right to Freedom of Religion (Articles 25 to 28)

5. Cultural and Educational Rights (Articles 29 and 30)

6. Right to Property (Articles 31 31 A, 31B and 31C)

7. Right to Constitutional Remedies (Articles 32 to 35)

Articles 12 and 13, to make Fundamental Rights more effective, Article 12 defines “the state” and Article 13(3)(a) defines “law” very widely.

English Education Act Notes Summary & Updates!

Under Article 12 the “State” includes

the Government and Parliament of India
the Government and the Legislatures of each of the States
all local authorities like Municipalities, District Boards Panchayats, Improvement trust etc.., and
the authorities within the territory of India or under the control of Government of India.
The last category “other authorities” has been held to include all authorities created, by the Constitution or statutes on whom powers are conferred by law, for example, The Life Insurance Corporation, The Oil and Natural Gas Commission and the Finance Commission have similarly been held to be “State” under Article 12.
The Supreme Court holding the authority in the category of “other authorities” propounded that an agency of the government would be regarded as an “authority” or “State” and also laid down some tests to examine the same.
In regard to judiciary, the Supreme Court has held that even if a court is treated as “State” a writ under Article 12 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the Fundamental Rights.

Under Article 13

Article 13 has been considered in several cases and has been the subject of conflicting decisions of our Supreme Court. Before discussing these decisions, it is necessary to consider the meaning of “law” and “law in force”.

Article 13 (3) (a) defines “law” very widely to include:

an ordinance, because it is made in the exercise of the legislative powers of the executive,
an order, bye law, rule, regulation and notification having the force of law,
customs or usage having the force of law because they are not enacted laws at all.
The expression law in force” is used in Article 13(1) and in Article 372 and is defined in identical terms by Article 13(3)(b) and Article 372.
The expression “existing law” is used for example in Article 19(2) to 19(6) and the difference in the definition of “existing law” and “law in force” has been relied upon to support the argument that existing law narrower than law force for whereas by express definition “law in force” includes a law if it is not in operation at all, or not in operation in a particular area, a law cannot be said to exist if it is not in operation.

Personal laws do not come within the scope of “laws in force” law includes any ordinance, order, bye law rule, regulation, notification, custom or usage having the force of law.
The enforcement of Fundamental Rights by the courts is part of the administration of justice.
In guaranteeing Fundamental Rights and in providing the means for their enforcement through courts of law. our Constitution has not abrogated conditions relevant to the administration of justice.
The securing of justice is one of the objectives of our Constitution Fundamental Rights are guaranteed under the Constitution and are incorporated in Part III.

Right To Equality (Articles 14 to 18)

Equality before the law prescribed in Article 14 of the Constitution of India which states as below

The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The doctrine of equality before the law is a necessary corollary to the high concept of rule of law accepted by the Constitution Article 14 refers to “Equality before law” which is an expression of “English Common Law” and “Equal Protection of Laws” which owe its origin to the
14th Amendment of the Constitution of United States of America.
“Equality before law” is a negative concept and “Equal protection of law” is a positive one.
The former declares that everyone is equal before law, that no one can claim special privilege and that all classes are equally subjected to the ordinary law of land.
The latter postulates an equal protection under like situation and under like circumstances.
Therefore, the discrimination can be made either in the privilege conferred or in the liabilities imposed.
Equal protection clause aims at striking down hostile discrimination or oppression of inequality.
The Supreme Court in Dalmia’s casen has considered all the previous cases on the true meaning and scope of Article 14 and have summarised the following propositions to see whether any law violates Article 14 or not.
The Supreme Court declares that Article 14 condemns discrimination not only by substantive law, but also by the procedural law that though it forbids classification and that permissible classifications shall satisfy the following two conditions:

1. It must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from others
left out of the group; and the differentia must have a rational relation to the object sought to be achieved by the statute in question.

Applicability of Article 14

Article 14 of the Constitution can have no application where the source of authority of the Parliamentary and state legislation are different.
Article 14 applies to the citizens as well as non-citizens found in India. The principle of discrimination laid down under Article 14 of the Constitution should not be applied to a case under Article 19 unless it involves identical situation, factual and legal.
What was once a perfectly valid legislation may, in course of time, become discriminatory and liable to challenge on the ground of its being violative of Article 14 of the Constitution.

Reasonable Classification

The Supreme Court has also in several cases laid down that the state can also be treated as a class by itself.
The expression “equal protection of laws” means the right to equal treatment in similar circumstances.
Article 14 ensures equality among equals protecting persons similarly placed against discriminatory treatment.
A person challenging an act as discriminatory must establish
that between persons similarly placed some were treated to their prejudice and the differential treatment has no reasonable relation to the object sought to be achieved by the law.
Reasonable classification of properties for conservancy changes, reasonable classification for persons with reference to grant of import Licences, reasonable classification for sales tax, for income tax etc.., do not infringe Article 14 of the Constitution.
But a fiscal law violates Article 14 if it introduces unreasonable discrimination between persons or property either by classification or lack of classification.
Even different though parallel laws in different areas of the state can be permitted on the ground that the difference apart from the historical reasons and such geographical classification based on historical reasons is reasonable classification.
Granting monopoly to state in respect of transport services by preparing a scheme under Chapter VI A of the Motor Vehicle Act 1939 is not violative of Article 14. Fixing different minimum wages for different industries in a state or for different localities within the state is permissible.
Classification of direct recruits and promotees for the purpose of promotion is reasonable. Fixing of different minimum wages for different industries having regard to different economic and local conditions is reasonable.
Treating pending cases as a class of different from decided cases is permissible.
Equality clause applies to every person, citizen or noncitizen.
And the court’s interpretation of this clause seeks to ensure both individual and social good.

Prohibition of Discrimination

Article 15 of the Constitution of India states as follows:

Prohibition of discrimination on the grounds of religion, race caste, sex or place of birth.
It is only a citizen who is entitled to the benefit of this article Article 14 on the other hand is available to all persons.
The mandate of Article 15 clearly extends to political as well as other rights. Therefore, the law of election on the basis of separate electorates for members of different religious communities violates Article 15.
State cannot make classification of the socially and educationally backward classes only on the consideration of caste.
But the reservations of the members of a caste being a class of citizen can be made if the caste as a whole is socially and educationally backward in view of clause (4) of Article 15.
Discrimination based on place of birth does not extend to provision on the basis of residence; so discrimination on the ground of residence does not attract Article 15.
Reservation of seats in a medical college for candidates of rural areas contravenes Article 15, but reservation of candidates for the hill areas does not but where reservation is made for candidates residing in a geographical are socially and educationally backward, the same does not violate Article 15, because of clause (4).
The object of protective discrimination [Article 15(4)] is to integrate the socially and educationally backward classes into the national mainstream so as to establish an integrated social order with equal dignity of person in which justice – social, economic and political – is enjoyed by them in equal measures with general members of the society, Dalits (SCs) and tribals are the victims of social injustice, such as practice of untouchability and segregation from the mainstream of normal life.

Equality Of Opportunity

Article 16 of the Constitution states as follows:

Equality of opportunity in matters in public employment.
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
No citizen shall on grounds only of religion, race, caste, sex descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of, any employment or office under the state.
Nothing in the Article shall prevent the state from making any provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.
Nothing in this Article shall prevent the state from making any provision of appointments or posts in favour of any backward class of citizens, which, in the opinion of the state, is not adequately represented in the services under the state.
Nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the state in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the states, are not adequately represented in the services under the state].
Nothing in this Article affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to particular denomination.

Equal Pay For Equal Work

The principle of equal pay for equal work has not been specifically declared to be a Fundamental Right under the Indian Constitution.
But it certainly is a constitutional goal. The principle of equal pay for equal work would be an abstract doctrine not attracting Article 14 if
sought to be applied to them.
But equality clause will have some substance if equal work means equal pay and such right is deducible from Article 14 and 16 in the light of Preamble to the Constitution and Act Article 39(d) of the Directive Principles of the Constitution.
There cannot be any unequal scale of pay on the basis of no classification or irrational classification when they do identical work under the same employer.
Thus the court makes a liberal use of the equality clause to make the directive of equal pay for equal work more authentically constitutional than what it is.

Abolition Of Untouchability

Article 17 of the Constitution states as follows. 17.
Abolition of untouchability, “untouchability” is abolished and its practice in any form is forbidden.
The enforcement of any disability rising out of “untouchability” shall be an offence punishable in accordance with law.

Protection of Civil Rights Act and Article 17

While interpreting Article 17 and the provisions of Protection of Civil Rights Act, the Supreme Court has held that the Constitution has removed the disabilities to which “Dalit members of Scheduled Caste’ were subjected and subjecting them again to such disabilities would be crime against the Constitution as well as violation of the Protection of Civil Rights Act.
It has also been observed that the thrust of Article 17 Protection of Civil Rights Acts is to liberate the society from blind and ritualistic adherence to traditional beliefs which lost all legal or moral base and that it seeks to establish a new ideal for society, that is, equality to the Dalits on par with general public, absence of disabilities, restriction and prohibition on the grounds of caste and religion, availability of opportunities and the sense of being a participant in the mainstream of the national life.
It has also been held that the disabilities to which the Dalits have been subjected have been outlawed and denial thereof offends the right to equality in Article 14 of the Constitution, that the scheme of Part III, namely the Fundamental Right is to remove disabilities to which the Dalits are subjected to and to provide positive discrimination in their favour and Part IV, namely, the Directive Principles fasten on the state to render socio-economic and political justice and protect them from all forms of exploitation and injustice by operation of Article 38 and Article 46 of the Constitution.
In other words, the Constitution charges the state to improve the quality of their lives, socio-economic and cultural pursuits as part of meaningful right to life guaranteed under Article 21.

Abolition Of Titles

Article 18 of the Constitution states as follows.
No title, not being a military or academic distinction shall be conferred by the state.
No citizen of India shall accept any title from any foreign state.
No person who is not a citizen of India shall, while he holds any office of profit or trust under the state, accept without the consent of the President any title from any foreign state.
No person holding an office of profit or trust under the state shall, without the consent of the President accept any present, emolument or office of any kind from or under any foreign state.

Right To Freedom (Article 19 to 22)

Right to freedom of speech is guaranteed under Article 19 of the Constitution as follows.
Protection of certain rights regarding freedom of speech. All citizens shall have the right-
to freedom of speech and expression;
to assemble peacefully and without arena;
to form associations or unions;
to move freely throughout the territory of India;
to reside and settle in any part of the territory of India and omitted;
to practice any profession, or to carry on any occupation, trade or business.

Freedom of Speech and Expression

The right of freedom of speech or expression is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge.
It is subject to reasonable restrictions which may be thought necessary in the interest of general public and one such is the interest of public decency and morality.

Freedom of Press

The freedom of press has no geographical barrier and this freedom is exercisable not only in India but also abroad and if the state action sets up barriers to the citizen’s freedom of speech and expression in any country of the world it would violate Article 19(1)(a).
This decision was held by the Supreme Court in Maneka Gandhi Vs. Union of India.
In several decisions the Supreme Court has held that freedom of press is an integral part of freedom of speech and expression and has upheld such freedom against state action to abridge or curtail its circulation, future growth or stop its entry in any particular state.
The right of freedom of speech includes the right to propagate one’s view through print media or through any other communication channel, such as video, television etc.

Right to Information

The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed under Article 19(1)(g).
A citizen has Fundamental Right to use the best means of imparting and receiving information and as such to have an access to telecasting for that purpose.
However, this right to have an access to telecasting has limitations on account of the use of the public property namely the air waves involved in the exercise of the right and can be controlled and restricted by the public authority.
This limitation imposed by the nature of the public property involved in the use of electronic media as in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution.
While the freedom, guaranteed by Article 19(1)(g) does not include the right to receive and impart information, no one can claim Fundamental Right to do so by using or employing the public property.
Only when the statute permits him to use the public property, then only and subject to such conditions and restrictions as the law may impose he can use the public property such as the air waves.
Another aspect of freedom of press Is that the proper balancing between the right to privacy and the freedom of press is necessary.
Publications of life story of a citizen exposing misdeeds of some public officials, cannot be prevented because the publisher has the right to publish.
But the public official or any other person may have similar right against the publishers if they contain any defamatory or other objectionable matters.

Right to Know

The basis of the right to know by a citizen about government decisions and actions is derived from freedom of speech which is a fundamental Right and is subjected to overriding interest of public security and secrecy.
When the Vohra Committee Report depicting nexus between criminals and politicians, bureaucrats, media persons and some members of the judiciary was tabled in the Parliament and the report that was tabled was genuine, the Public Interest Litigation by Member of Parliament along with an NGO to make public the report along with its annexures, memorials and written evidence was, according to the supreme Court, against the Public Interest.

Right to Form Association or Unions

The right to form labour unions is a Fundamental Right but this right does not extend to the right to effect collective bargaining or to strike.
Right to practice any profession and to carry out any occupation, trade or business Article 19(1)(g) guarantees to all citizens the right to practice any profession or to carry on any occupation, trade or business subject to reasonable restrictions by the state under Clause (6) of Article 16.