Chapter 3 Fundamental Rights – (a) General (b) Specific Fundamental Rights


Introduction to the Fundamental Rights of an Individual: As provided against the State

Fundamental rights were deemed to be essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their government. They are the limitations upon all the powers of the Government, legislative as well as executive.
In Maneka Gandhi Case[4], Bhagwati, J., observed: “These Fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantee’ on the basic structure of the human rights, and impose negative obligations on the State not to encroach on the individual liberty in its various dimensions.”
The object behind inclusion of them in the Constitution is to establish ‘a government of law and not of man’. The object is to establish rule of law. The object is not merely to provide security and equality of citizenship of the people living in this land and thereby helping the process of nation building, but also and not less important to provide certain standards of conduct, citizenship, justice and fair play.[5]
In M. Nagraj v. Union of India,[6] the Supreme Court speaking about the importance of the fundamental rights- the fundamental rights are not the gifts from the State to citizens. Part III does not confers fundamental rights but confirm their existence and give them protection. Individuals possess basic human rights independently of any Constitution by reason of basic fact that they are human race. These rights are important as they possess intrinsic values. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts.
  • Widest Interpretation of provisions of Part III- in Maneka Gandhi Case[7]the Supreme Court has held that the provisions of Part III should be given widest possible interpretation. Delivering the judgement, Bhagwati, J., said, “The correct way of interpreting the provisions of Part III is that attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content”. In Gopalan’s case[8], the Court had taken the view that each Article dealt with separate rights and there was no relation with each other. In other words, they were mutually exclusive. This view has been held to be wrong in Maneka Gandhi’s case[9] where the Court has taken the view that they are mutually exclusive but form a single scheme in the Constitution that is they are all parts of an integrated scheme in the Constitution.
The validity of a law infringing fundamental rights can be judged not only with reference to particular Article under which such a law is enacted but also with reference to other articles. In Gopalan’s case[10] it was held that the validity of a deprivation law enacted under Article 21 could not be tested under Article 19. This view has now been overruled in Maneka Gandhi’s case[11] and it has been held that a law depriving a person of his personal liberty under Article 21 must also satisfy the test of ‘reasonableness’ under Articles 14 and 19 of the Constitution.
  • Natural Justice and due Process – in Maneka Gandhi’s case[12] the Supreme Court has held that the ‘procedure’ depriving a person of his ‘life or personal liberty must be just, fair and reasonable’. It must satisfy the requirement of natural justice which is an essential component of fair procedure under Article 21. “Natural justice is a distillate of due process” observed Krishna Iyer, J., the concept of natural justice and due process which were rejected in Gopalan’s case forming part of our Constitutional scheme guaranteeing fundamental rights.
  • Prisoners’ rights and Prison Reforms- the Supreme Court has considerably widened the scope of Article 21 and has held that its protection will be available for safeguarding the fundamental rights of the prisoners and for effecting prison reforms. Convicts are also human beings and until they are hanged they are entitled to live in jail as human beings and not slaves. Inhuman and barbarous treatment with Solitary confinement, hand-cuffing, harsh labour, degrading jobs and punishments in jail without judicial approval violate the mandate of Article 21 of the Constitution. Speedy trial and legal aid to the poor prisoners are constitutional rights available to them and does not depend upon the mercy of the state.
  • Expanding the role of writ of Habeas Corpus- the dynamic role of judicial remedies after the Sunil Batra’s case[13] imparts to the writ of habeas corpus with a versatile vitality and operational utility as bastion of liberty even within the jails. Wherever the right of prisoner either under the Constitution or under other law are violated the writ power of the Court can and should run to rescue. The habeas corpus writ can be issued not only for releasing of a person from illegal detention but also for directing the jail authorities to provide necessary amenities to the prisoners and to protect them from inhuman and barbarous treatment. In ABSK Sangh (Rly.) v. Union of India[14], it has been held that even an unregistered association can maintain a petition for relief under Article 32 of the Constitution if there is common grievance. Thus, Article 32 is not confined to protect only individual’s fundamental rights but is capable of doing justice wherever it is found and the society has an interest in it. “Access to justice through ‘class actions’, ‘public interest litigation’ and ‘representative proceedings’ is the modern jurisprudence”, declared Krishna Iyer, J., in the historic judgement of Judges Transfer case[15].
  • Human Rights Jurisprudence- the Supreme Court has now moved to more of Human rights, particularly for protecting from inhuman and barbarous treatment. Krishna Iyer, J., in Sunil Batra’s case[16] has said “today, human rights jurisprudence in India has Constitutional Status.”
In 1979, India became the party to ICCPR. Article 10 of the ICCPR provides that “all persons deprived of their liberty shall be treated with humility and with respect for the inherent dignity of the human persons. Article 5 of the U.N. Declaration of Human Rights, 1948 says, “No one shall be subject to the torture or to cruel, inhuman or degrading treatment or punishment”. In Prem Shankar v. Delhi Administration[17], Krishna Iyer, J., said that in interpreting the Constitutional and statutory provisions the Court must not forget the core principle found in Article 5 of UDHR, 1948. Homage to human rights which calls for prisons, prison staff and prisoners reform, his Lordship Declared.
Fundamental rights are the natural rights of individuals but to avoid its misuse it has been imposed with certain restrictions.  Fundamental rights are not absolute rights, the Constitution provides for the curtailment and suspension of fundamental rights in the following circumstances:
  1. During the time of emergency: Article 358 provides that when the proclamation of emergency is made by the President under Article 352 the freedoms guaranteed by Article 19 are automatically suspended and would continue to be so for the period of emergency.
  2. President’s order to suspend the rights under Article 359: Article 359 further empowers the President to suspend the right to move to the Court for enforcement of rights conferred by part III of Constitution (except Article 20 and 21) during the continuance of emergency.
The Fundamental Rights as incorporated in the Indian Constitution can be classified under the following six groups:’
  1. Right to Equality (Articles 14-18)
  2. Right to Freedom ( Articles 19-22)
  3. Right against Exploitation ( Articles 23-24)
  4. Right to Freedom of Religion (Articles 25-28)
  5. Cultural and Educational Rights (Articles 29-30)
  6. Right to Constitutional Remedies ( Articles 32-35)
The 44th Amendment has abolished the right to property as a fundamental right as guaranteed by Article 19(1) (f) and Article 31 of the Constitution, and hence, Article 19(1) (f) and Article 31 has been omitted.
The rights which are given to the citizens as fundamental rights are a guarantee against state actions as distinguished from the violation of such rights by private parties. Private action is sufficiently protected by the ordinary law of land.

Fundamental Rights – Nature, Scope and importance

India guarantees a set of rights considered essential for protecting human dignity which is known as Fundamental Rights. The Fundamental Rights, as embedded in the Indian Constitution, ensure equal and fair treatment of the citizens before the law.[1] The rights that are basic to the advancement of the human race are called Fundamental Rights. All other rights are derived from these rights as direct implications or application of their principles. It is an accepted belief among the philosophers that these rights are nothing but “natural human rights”, which distinguish between humans and animals and which have been so instrumental in bringing humans from the stone age to the present age. Among all, the right to life and liberty is considered to be the most basic.
The history of legally enforceable fundamental rights probably starts from Magna Carta, which was a list of rights extracted from Kind John by the people of England in 1214 AD.  This was followed by the “Bill of Rights” in 1689 in which Englishmen were given certain civil and political rights that could not be taken away.  Later on the French compiled the  “Declaration of the rights of Man and of the Citizen” after the French Revolution in 1789.
The most important advancement in history of fundamental rights occurred when the USA incorporated certain fundamental rights in the form on “Bill of Rights” in their constitution by the way of first 10 amendments. These rights were deemed to be beyond the vagaries of politics. The protection by the constitution meant that these rights could not be put to vote and were not dependent on the whims of politicians or of the majority. After this, nearly all democracies of the world have given a constitutional sanctity to certain inalienable rights available to their citizens.

Need for Fundamental Rights
  1. Rule of Law – These rights are a protection to the citizens against the govt. and are necessary for having the rule of law and not of a govt. or a person. Since explicitly given by the constitution to the people, these rights dare not be transgressed by the authority. The govt. is fully answerable to the courts and is fully required to uphold these rights.
  2. First fruits of the freedom struggle – After living in subjugation for such a long time, people had forgotten what is meant by freedom. These rights give people hope and belief that there is no stopping to their growth. They are free from the whims of the rulers. In that sense, they are first fruits of the lengthy freedom struggle and bring a sense of satisfaction and fulfillment.
  3. Quantification of Freedom – Even citizens in gulf countries or communist countries are free. Then how is our freedom different from theirs? The list of fundamental rights is a clear measurement for how free we really are.  As an example, every Indian citizen in free to practice a religion of his choice, but that is not so in the gulf countries. Our right to speech and expression allows us to freely criticize the govt. but this is not so in China.
Fundamental Rights in India.
Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the fundamental rights available to the citizens of India. In the case of Menaka Gandhi vs Union of India AIR 1978, J. Bhagvati has said that these rights represent the values that are cherished by the people of this country since the vedic ages and are calculated to protect the dignity of individual and to create conditions in which every human being is able to develop his personality to the fullest. These rights are necessary for a human being for attaining full social, intellectual, and spiritual status.
These rights can be grouped into 6 categories –
  1. Articles 14-18 Right to Equality – Art. 14 ensures that all citizens are treated equally. It enshrines the principle of “Equality before law and Equal protection of law”.  However, this brings us to an important question. Should people living in unequal circumstance be treated equally? In Indian Constitution, the answer is a resounding no. We have adopted the mantra of “equal treatment under equal circumstances”. This is reflected in Art 15, which, while prohibits the state from discriminating between the citizens only on the grounds of Caste, Race, Religion,  Sex, and Place of Birth or all of them[ Art 15(1) ], also allows the state to make special provisions for Women and Children [Art 15(3)] and for Backward classes [Art 15(4)].
Art. 16 takes the same principle further to employment in govt. jobs.
Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as Rai Bahadur that used to be given in the British rule.
The cases of Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v Union of India SC AIR 1951 are important cases that illustrate the concept of equal protection of the laws. In these cases, the SC of both the countries held that all persons similarly circumstanced should be treated equally. Only like should be treated alike and thus a reasonable classification can be done. Several cases such as Randhir Singh v Union of India 1982 (Equal pay for equal work) illustrate the principle of equality.
The SC judgment in Indra Sawhney v Union of India AIR 1993 incorporates the element of fairness in dealing with inequalities in the society, while balancing the aspirations of the socially forward classes.
  1. Articles 19-22 Right to Freedom – A citizen of India is given freedom of Speech and Expression, freedom of Assembly, freedom of Association, freedom of Movement, freedom of Residence, and Freedom of Profession and Occupation through Art. 19.
    20 gives protection with respect to conviction of offenses. This includes the principles of
  • Ex-post facto law: A person can only be with charged with an offence of an action if the said action was illegal as per the law of the time when the action was committed.
  • Double jeopardy: A person cannot be charged with the same crime if he has already been produced before the court and a verdict has been pronounced.
  • Self- incrimination: A person will not be forced to testify against himself.

Art. 21, which is the most important and diverse of all the rights to freedom, is the Protection of Life and Personal Liberty. SC in Menaka Gandhi v Union of India AIR 1978 was a landmark case that gave wide interpretation of this right. In this case the SC held that his right is not only about having any kind of life but a life of dignity. The freedom is not just physical but mental as well as spiritual. This encompasses several rights such as right to travel abroad (Satvant Singh v Ass. Passport Office AIR 1967) and right to pollution free water and air (Subhash Kumar v State of Bihar AIR 1991). Further, Constitution Amendment Act 86, 2002 makes free and compulsory education to children under 14 a fundamental right.
Art. 22 gives protection from illegal arrest or detention. It provides that a person must be informed of the grounds of arrest as soon as possible,  be allowed to speak to a lawyer of his choice, and be produced before a magistrate within 24 hrs. of detention.
  1. Art 23-24 Right Against Exploitation – Under Art. 23, the govt. has banned trade in human beings. This includes flesh trade and forced work or work without pay (begar system).
    24 prohibits children from being employed in factories and hazardous conditions.
  2. Art 25-28 Freedom of Religion – Unlike several countries of the world, we are free to practice, profess, and propagate any religion under Art. 25. Art. 26 allows us to establish and maintain institutions for religious and charitable purposes. It also gives the right to manage our own religious matters. Art. 27 provides tax benefits for promotion of religion and art. 28 prohibits religious teaching in govt. and govt. aided schools.
  3. 29-30 Cultural and Educational Rights – Art. 29 allows any section of citizens living anywhere in India who have a distinct language, script, or culture, to preserve the same.  Art. 30 allows minorities to establish and maintain educational institutions. To prevent discrimination, however, art 29(2) prohibits them from discrimination in admissions only on the grounds of religion, race, caste, language, or any of them.
  4. Art 32 Right to Constitutional Remedies – Dr. Ambedkar, the chief architect of our constitution, has said that Article 32 is the soul of our constitution. All the talk of rights is useless if there is no recourse against their transgression. Under this article, a citizen is free to go to the Supreme Court for violation of his rights.
Scope of Fundamental Rights
Widest Possible Interpretation – SC in A K Gopalan v State of Madras AIR 1950 had held that the various rights given under part III talk about different things and are not be interlinked. This view, however, has been rightly rejected by the SC in Menaka Gandhi v Union of India AIR 1978 case. In this case, J Bhagvati said that the role of SC should be to interpret these rights in the widest possible manner and it should not attenuate these rights by being confined to their narrow definition. All these rights are not mutually exclusive and form an integrated theme of the constitution. J Beg said that their waters must mix to form a grand flow of unimpeded and impartial justice.  Thus, any law that takes away the life or liberty of a person, must also satisfy the test of reasonableness under art. 14.
Natural Justice and Due Process
In Menaka Gandhi’s case, SC has held that any law that takes away the life or liberty of a person under art. 21, must be just, fair, and reasonable. It must satisfy the principle of natural justice, which is a basic component of fair procedure under Art. 21. While Art 21 does not contain the “due process” clause of the American Constitution, the effect is the same because natural justice is a distillate of due process i.e. natural justices can only be delivered through due process.
Expanding the role of writ of Habeas Corpus
The case of Sunil Batra v Delhi Admin AIR 1980 has given tremendous power to the writ of Habeas Corpus. It allows the judiciary to even enforce the fundamental rights in a prison. Even prisoners are humans and must be treated with dignity. They cannot be stripped off of their fundamental rights, thus menial or forced work without pay, solitary confinement, degrading punishment, is not allowed. This case has also allowed people who are not directly involved but have any kind of interest to approach the court. The objective is to remove injustice wherever it is found in the society.
Absoluteness of Fundamental Rights
“Your freedom ends where my freedom starts” is a well-known saying. The constitution gives you the right to propagate your religion. But does that mean you should force me to hear religious activities over the loudspeaker? The constitution gives you the freedom of speech and expression. But does that mean you can publish and sell pornography freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution also takes the same stand and specifies the limits of these rights. These rights extend only until they do not affect security of the state, public order, and social decency. The constitution allows reasonable restrictions to be placed on these rights. SC in A K Gopalan v State of Madras 1950 has also held that Fundamental Rights are not absolute.
Suspension of Fundamental Rights
Under art 358, freedoms given under art 19 are suspended when the president proclaims emergency. Further, under art 359, president may suspend the right to move courts for violation of rights given in part III except art 20 and 21.
Critical Analysis
Indian Constitution was written after a thorough analysis of existing constitution of the world. The framers of the constitution have incorporated the good things from all the places. As such it is more fair and consistent than religious books. It is for the foresight of the framers of the constitution that the country is integrated and has progressed. While the framers had thought about a lot of things, the one thing that they probably missed was the safeguards against the degrading morality of politicians.