Fundamental Rights in the Indian Constitution: A Comprehensive Guide

Bill of Rights

A list of rights mentioned and protected by the constitution is called the Bill of Rights. A democracy must ensure that individuals have certain rights and that the government will always recognize these rights. It prohibits the government from acting against the rights of individuals and ensures a remedy in case there is a violation of these rights.

Fundamental Rights in the Indian Constitution

• The Motilal Nehru committee had demanded a bill of rights as far back as in 1928.
• The Constitution listed the rights that would be specially protected and called them ‘fundamental rights’.
• Fundamental Rights are so important that the Constitution has separately listed them and made special provisions for their protection.
• The Fundamental Rights are so important that the Constitution itself ensures that they are not violated by the government.

Ordinary Rights and Fundamental Rights

• Ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution of the country.
• Ordinary rights may be changed by the legislature by the ordinary process of law-making, but a fundamental right may only be changed by amending the Constitution itself.
• The judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government. Executive as well as legislative actions can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner.

Right to Equality

• Equality before the law
• Equal protection of laws
• Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth
• Equal access to shops, hotels, wells, tanks, bathing ghats, roads, etc.
• Equality of opportunity in public employment
• Abolition of Untouchability
• Abolition of titles

Right to Freedom

• Protection of Right to:
  • Freedom of speech and expression
  • Assemble peacefully
  • Form associations/unions
  • Move freely throughout the territory of India
  • Reside and settle in any part of India
  • Practice any profession, or to carry on any occupation, trade, or business
• Protection in respect of conviction for offenses.
• Right to life and personal liberty.
• Right to education.
• Protection against arrest and detention in certain cases

Right against Exploitation

• Prohibition of traffic in human beings and forced labor.
• Prohibition of employment of children in hazardous jobs.

Right to Freedom of Religion

• Freedom of conscience and free profession, practice, and propagation of religion.
• Freedom to manage religious affairs.
• Freedom to pay taxes for the promotion of any particular religion.
• Freedom to attend religious instruction or worship in certain educational institutions

Cultural and Educational Rights

• Protection of language, culture of minorities.
• Right of minorities to establish educational institutions.
• Right to Constitutional Remedies.
• Right to move the courts to issue directions/orders/writs for the enforcement of rights

Overview of Rights

• The Constitution clarifies that the government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes.
• In fact, Article 16(4) of the constitution explicitly clarifies that a policy like reservation will not be seen as a violation of the right to equality. If you see the spirit of the Constitution, this is required for the fulfillment of the right to equality of opportunity.
• Right to freedom of speech and expression is subject to restrictions such as public order, peace, and morality, etc.
• Freedom to assemble too is to be exercised peacefully and without arms.
• The government may impose restrictions in certain areas declaring the assembly of five or more persons as unlawful.

Preventive Detention

• Ordinarily, a person would be arrested after he or she has reportedly committed some offense. However, there are exceptions to this.
• Sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for some time. This is known as preventive detention.
• It means that if the government feels that a person can be a threat to law and order or to the peace and security of the nation, it can detain or arrest that person. This preventive detention can be extended only for three months.

Rights of Accused

• To ensure a fair trial in courts, the Constitution has provided three rights:
  • No person would be punished for the same offense more than once.
  • No law shall declare any action as illegal from a backdate, and
  • No person shall be asked to give evidence against himself or herself.

Freedom of Faith and Worship

• Freedom of religion also includes the freedom of conscience.
• It means that a person may choose any religion or may choose not to follow any religion.
• Freedom of religion includes the freedom to profess, follow and propagate any religion.

Certain Limitations

• That the government can impose restrictions on the practice of freedom of religion in order to protect public order, morality, and health.
• It is not an unlimited right.
• The government can interfere in religious matters for rooting out certain social evils.
• The Constitution does not allow forcible conversions.
• It only gives us the right to spread information about our religion and thus attract others to it.

Cultural and Educational Rights

• All minorities, religious or linguistic, can set up their own educational institutions. By doing so, they can preserve and develop their own culture.
• The government will not, while granting aid to educational institutions, discriminate against any educational institution on the basis that it is under the management of a minority community.

Right to Constitutional Remedies

• Dr. Ambedkar considered the right to constitutional remedies as the heart and soul of the constitution because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation.
• The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.

Writs

The courts can issue various special orders known as writs.

• Habeas corpus: Means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.
• Mandamus: Issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual.
• Prohibition: Issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.
• Quo Warranto: If the 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, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.

National Human Right Commission (NHRC)

• The Commission’s functions include inquiry at its own initiative or on a petition presented to it by a victim into the complaint of violation of human rights.
• Visit to jails to study the condition of the inmates.
• Undertaking and promoting research in the field of human rights.
• The Commission does not have the power of prosecution.
• It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.

Directive Principles of State Policy

The chapter on Directive Principles lists mainly three things:

• The goals and objectives that we as a society should adopt.
• Certain rights that individuals should enjoy apart from the Fundamental Rights; and
• Certain policies that the government should adopt.

Relation between Fundamental Rights and Directive Principles of State Policy

• Fundamental Rights restrain the government from doing certain things while Directive Principles exhort the government to do certain things.
• Fundamental Rights mainly protect the rights of individuals while Directive Principles ensure the well-being of the entire society.

Right to Property

• In the Constitution, originally, there was a fundamental right to acquire, possess and maintain property.
• But the Constitution made it clear that property could be taken away by the government for public welfare.
• In 1973, the Supreme Court gave a decision that the right to property was not part of the basic structure of the Constitution and therefore, parliament had the power to abridge this right by an amendment.
• In 1978, the 44th amendment to the Constitution removed the right to property from the list of Fundamental Rights and converted it into a simple legal right under article 300A.