Fundamental rights in Indian constitution

Unveiling the Cornerstones of Indian Democracy: Fundamental Rights in Indian Constitution

Fundamental Rights represent the basic human rights essential for every citizen. The Indian Constitution not only grants these rights but also guarantees their protection, recognising them as indispensable for the proper functioning of citizens and the sustainment of a democratic way of life. These bedrock principles are universally accepted and mirrored in major global charters, such as the Bill of Rights of the U.S.A. and the U.K.

Crucially, the Fundamental Rights are enshrined in Part III of the Indian Constitution, spanning from Article 12 to Article 35. This vital section was notably borrowed from the Bill of Rights of the USA, providing a robust framework for individual liberties within the world’s largest democracy. They serve as the foundational pillars upon which justice, liberty, and equality are built for all Indians.

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Types of Rights:

Before we talk further about the fundamental rights in Indian Constitution, let’s begin with the definition of rights, and the types of rights that are defined political theories.
Rights refer to justified claims or entitlements that individuals possess, enabling them to live with dignity, freedom, and security within a society.

The diverse range of rights can be classified into the following categories:

• Natural Rights: These are Universal Rights that are inherent in every human being. They are not granted by any specific government, laws, customs, or beliefs, and consequently, no governmental or international body has the power to dismiss or revoke them.
• Human Rights: Similar to Natural Rights, Human Rights are universal and intrinsic to human nature. They are considered essential for a dignified human life and are enjoyed irrespective of social, political, or other considerations. A key articulation of these rights is found in the United Nations Universal Declaration of Human Rights (UDHR) of 1948.
• Civil Rights: These rights are formally conferred by the Constitution or the law of a specific country. The nature and scope of Civil Rights vary between different countries based on their individual requirements and legal frameworks. It contains both statutory and constitutional rights.
• Statutory Rights: These are rights that have the backing of a statute through legislation process. They are typically created through executive resolution or parliamentary enactment. These are usually ordinary legal laws. Statutory rights can exist outside the Constitution (extra-constitutional), such as the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) and the Right to Information Act (RTI), or they can be provided for within the Constitution (intra-constitutional) in terms of the bodies they establish, like the National Human Rights Commission (NHRC).
• Constitutional Rights: These are the rights that are enshrined directly within the text of the Constitution of a nation. Within this category, some rights, like the Fundamental Rights in Indian Constitution, enjoy a special, protected status, while others, such as the Directive Principles of State Policy, do not share the same status. Every constitutional right is a statutory or legal right, as it is also passed through a legislation, but every statutory right is not a constitutional right. For instance, Right to vote is a constitutional right under article 326, but it is also a statutory right under section 62 of Representation of People’s Act, 1951.
• Fundamental Rights: These rights constitute a branch of political and civil rights. They are named as such because they are guaranteed and protected by the Constitution of India. These are the basic human rights deemed essential for the physical, intellectual, and spiritual development of a human being. They are common to most liberal democracies and are intended to provide safety, security, and dignity to the individual. The Supreme Court serves as the ultimate guarantor and protector/gaurdian of these fundamental rights in Indian constitution.

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Evolution of rights:

The concept of fundamental rights in Indian Constitution viewed through centuries of global struggle for liberty and justice. Landmark documents like the Magna Carta (1215) by King John, the Petition of Rights (1628), and the Bill of Rights (1689) in Britain which limited monarchical power, laid early foundations of individual freedoms. The Declaration of the Rights of Man and Citizen (1789) during the French Revolution and the Bill of Rights (1791) in the USA further strengthened civil liberties. Post-World War II, the Universal Declaration of Human Rights (UDHR) of 1948 reinforced universal rights.

The Constitution does not explicitly define Fundamental Rights. Their interpretation was first provided by the Supreme Court in the Golaknath vs. State of Punjab case (1967), where the Court held that Fundamental Rights are essential human rights required for individual development. It further stated that these rights hold a ‘transcendental’ position in the Indian Constitution and therefore cannot be amended by Parliament.

However, in Keshavananda Bharati vs. State of Kerala (1973), the Supreme Court reversed its earlier stance. The Court ruled that Parliament does have the authority to amend Fundamental Rights. It also introduced the important doctrine of the Constitution’s “basic structure doctrine,” affirming that while Parliament may amend any part of the Constitution, it cannot alter or destroy its basic structure, as the power of the parliament to amend the constitution is not absolute. Fundamental Rights in Indian constitution themselves were not placed within this “basic feature” category. Therefore, Parliament may modify or restrict these rights when required for the greater good of society.

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Salient Features of Fundamental Rights in Indian Constitution

1. Availability and Enforcement

Some Fundamental Rights in Indian Constitution are exclusively reserved only for citizens. These specific rights are detailed in Articles 15, 16, 19, 29, and 30. Conversely, some Fundamental Rights are available to both citizens and foreigners residing in India, which include Articles 14, 20, 21, 21-A, 23, 24, 25, 26, 27, and 28.

Furthermore, rights can be categorised based on whose action they prohibit:

• Vertical Rights: These rights are designed to prohibit the State’s action (All Fundamental Rights fall into this category).
• Horizontal Rights: These rights act by prohibiting private or individual actions (Specifically Articles 15, 17, 21, 23, and 24).

2. Non-Absolute Nature and Restrictions

These rights are not absolute; the State is permitted to impose reasonable restrictions upon them. The judiciary, specifically the Court, is empowered to determine whether these restrictions are just, fair, and transparent and whether they were imposed in a non-arbitrary manner. Such restrictions may be necessitated by concerns related to public health, morality, decency, the security of the state, and law and order problems, among other grounds.

3. Character: Negative and Positive

Fundamental Rights in Indian Constitution are primarily negative in character, meaning they impose limitations on the authority of the State. They function to limit government control over individuals and serve as a protection against arbitrary government actions. The government cannot legally dismiss these negative rights. Examples of negative rights often include civil and political rights, such as the freedom of speech, freedom of religion, freedom of having privacy and life and freedom from human trafficking and exploitation.

However, some Fundamental Rights are positive in nature, as they actively provide certain privileges to the people. Positive rights are usually associated with the next generation of rights (economic, social, cultural), such as the right to food, shelter, education, employment, and health, while negative rights are often considered the first generation of rights.

4. Justiciability and Guarantee

Fundamental Rights in Indian Constitution are justiciable, which means individuals are legally entitled to move the Supreme Court or High Court, that issue writs in the matter, directly for their protection and enforcement. The Constitution has created provisions for the protection of these rights, establishing elaborate instruments such as the right to constitutional remedy, the mechanism of Public Interest Litigation (PIL), and institutions like the Human Rights Commissions. Ultimately, they are defended and guaranteed by the Supreme Court.

5. Amendability and the Basic Structure

Fundamental Rights in Indian Constitution are not sacrosanct and permanent. The Parliament holds the authority to change, abridge, or reduce these rights. Parliament can curtail or repeal them, but this must be done only by a Constitutional Amendment Act (CAA). Furthermore, any such amendments are subject to the ‘basic structure’ of the Constitution. If the Supreme Court determines that any amendment violates the ‘basic structure,’ it possesses the power to declare that amendment null and void.

6. Suspension During Emergency

The six freedom rights guaranteed specifically by Article 19 of fundamental rights in Indian Constitution can be suspended only when a national emergency is declared based on the grounds of war or external aggression. Importantly, Article 19 cannot be suspended in the case of an internal emergency declared on the ground of armed rebellion. Any such suspension automatically terminates when the emergency ceases to operate or when the President officially withdraws the proclamation. The 44^th Constitutional Amendment act, 1978, made Article 20 and 21 absolute, which can not be suspended during emergency.

7. Restrictions for Specific Personnel and Right to Property

These rights can be legally restricted for members of the armed forces, para-military forces, police forces, intelligence agencies, and those engaged in other eminent service to national security.

Originally, the Constitution encompassed seven types of fundamental rights. However, the 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right by repealing Article 19(1)(f) and Article 31. This amendment subsequently converted the Right to Property into a legal right enshrined under Article 300A in Part XII of the Constitution. This provision stipulates that no person shall be deprived of his property except by authority of law. Consequently, the right to property is presently a legal or a constitutional right, though it is no longer a fundamental right.

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The Six Fundamental Rights in Indian Constitution

1. Right to equality (Article 14 to 18)
2. Right to freedom (Article 19 to 22)
3. Right against exploitation (Article 23 & 24)
4. Right to freedom of religion (Article 25 to 28)
5. Cultural and educational rights (Article 29 to 30)
   (Right to property (Article – 31) Repealed in 1976 through 44^th CAA. )
6. Right to constitutional remedies (Article 32)

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Article 12: Definition of the State

The expression “the State’’ in this article of the fundamental rights in Indian Constitution includes:

(a) Government and Parliament of India that is executive and legislative organs of Union government.

(b) Executive and legislative organs of State government.

(c) All local governments, i.e., municipalities, panchayats etc.

(d) All other authorities within the territory of India or which come under government of India like LIC, ONGC, SAIL.

According to Supreme Court, even private body or an agency working as an instrument of the state falls within the definition of ‘State’. The actions of these agencies can be challenged in the court for the violation of any fundamental right. (as found quoted in R.D. Shetty v. International Airport Authority (1979) and Ajay Hasia v. Khalid Mujib Sehravardi (1981)).

The definition in Article 12 includes the legislative and the executive bodies as part of the state. Is Judiciary part of the state too?

Cases that support and reject accordingly:

In the case of A. R. Antulay vs. R. S. Nayak (1988), the Supreme Court overturned its own prior 1984 verdict. The initial 1984 order had transferred the corruption trial of A. R. Antulay from a special judge, appointed under the Criminal Law (Amendment) Act, 1952, to the Bombay High Court. The 1988 ruling declared this transfer order violated the plaintiff’s fundamental rights in Indian Constitution under Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty). The Court emphasized the principle of Actus Curiae Neminem Gravabit (an act of the court shall prejudice no man), thereby holding that a court’s order cannot violate the provisions of Fundamental Rights. This judgment implicitly suggested that the Judiciary, when passing an order that impacts fundamental rights, is subject to the same constitutional constraints as ‘the State’.

Eminent Indian constitutional law scholar, Dr. Durga Das Basu, offered a nuanced perspective on whether the Judiciary is included in the definition of “The State” under Article 12 of the Constitution. Basu argued that the Judiciary is not in a position to violate Fundamental Rights in Indian Constitution because it is inherently part of the Constitution itself. He posited that the Judiciary is not explicitly excluded from the definition of ‘the State’.

Basu clarified this dual status:

• As ‘The State’: The Judiciary, when acting as an administrative or rule-making body (e.g., framing court rules), is implicitly covered by the expression “other authorities within the territory of India.”
• Not as ‘The State’: However, when performing its pure adjudication function and serving as the protector and guardian of the Fundamental Rights in Indian Constitution from the arbitrary actions of the legislature and executive (under Articles 13, 32, and 226), the Judiciary is not considered “the State” for the purpose of Fundamental Rights enforcement.

This distinction was further clarified in Rupa Hurra vs. Ashok Hurra (2002). The Supreme Court stated that while the actions of State organs can be challenged for violating Fundamental Rights, judicial orders are distinct. This is because judicial orders are the results of adjudication, not the exercise of executive action. The Court concluded that in its pure judicial capacity, the Judiciary cannot be challenged under Article 32 for violating Fundamental Rights, and thus, it is not considered part of ‘the State’ for that purpose. Only the administrative or law-making part of the Judiciary falls within the definition of ‘the State’.

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Article 13: Law inconsistent with or in derogation of the fundamental rights

1. The first clause states that all the laws which were in force, ‘Law in Force’, or legislated before the outset of the Constitution, if found inconsistent or in non-agreement with the Part III (The Fundamental Rights in Indian Constitution), shall be considered void to the limit of that inconsistency, i.e. the part of the law which is inconsistent.
   
2. This clause prohibits the state to make any law that takes away or abridges, i.e. diminishes, with the rights conferred in the Part III and contravenes with this clause shall be made void to the extent of the contravention.
   
3. The clause 3 defines the definition of the contexts ‘Law’ and ‘ Law in Force’.
   “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.
   “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of the Constitution and not previously repealed, even if such laws or a part of those laws were not in operation in entire or part of the country then, i.e. laws on paper, shall be considered laws in force.
   
4. Nothing in this article shall apply to any amendment of the constitution made under article 368. (Added through 24^th CAA, 1971, along with article 368 (3) on same reason).

Both the extent of the Inconsistency and the contravention are in respect to the Doctrine of Lapse and Severability.

Doctrine of Eclipsing:

says that if any law is overridden by a subsequent law, the earlier law does not cease to exist. It only goes into dormancy state. One overridden law is diluted or deleted; the earlier law came into operation. it is applicable to only pre-constitutional laws, means laws which were included in the constitution before 26 Jan 1950. It cannot be applied to post-constitutional laws.

Doctrine of Severability:

For post-constitutional laws, any law or provision or part of it violating Fundamental Rights is considered as void and removed but the remaining part remains effective as long as it doesn’t conflict with the provision of the constitution.

Article 13 of the fundamental rights in Indian Constitution provides Constitutional basis for judicial review. Under it, the Supreme Court checks the constitutionality of any law which is passed by the Parliament. If any such law is violating the provisions of the Constitution, then the Supreme Court can declare it illegal or unconstitutional.

Cases related to the validation and evolution of Judicial review:

• Sankari Prasad vs. Union of India (1951): In this case, Sankari Prasad challenged the validity of the 1st Constitutional Amendment Act, 1951, alleging that it violated rights through Article 31A—which granted immunity to land reform laws from judicial review—and Article 31B, which inserted the Ninth Schedule, informally called “the black hole of the Constitution” since any law placed under it was protected from judicial review. The Supreme Court held that the term “law” in Article 13(2) did not include constitutional amendments made under Article 368, and that “law” referred only to ordinary legislation. Therefore, the First Amendment Act was upheld as valid.

• Sajjan Singh vs. State of Rajasthan (1965): The petitioner challenged the 17th Constitutional Amendment Act, 1964, which inserted 44 state land reform laws into the Ninth Schedule, claiming it violated Articles 13 and 31. The Supreme Court reaffirmed the ruling in Sankari Prasad, holding that the amendment powers under Article 368 extended to the entire chapter on Fundamental Rights in Indian Constitution. It ruled that the “pith and substance” of the amendment was to provide economic benefits to tillers and landless agricultural labourers, as most of the agrarian population relied on land cultivation. Thus, the 17th Amendment was upheld.

• The decisions in Sankari Prasad and Sajjan Singh were later overturned in the Golaknath case.

• Golaknath vs. State of Punjab (1967): In this case, the petitioners argued that their Right to Property under Article 31 had been violated by the 1st CAA (inserting the Ninth Schedule), the 4th CAA (1955) (which prevented courts from questioning compensation amounts for land acquisition), and the 17th CAA (inserting the Punjab land reform law into the Ninth Schedule). The Supreme Court ruled that Fundamental Rights were inviolable and sacrosanct. It held that Parliament could not amend or abridge Fundamental Rights, and that Article 368 laid down only the procedure for amendment, not the power to amend. Thus, constitutional amendments were treated as “law” under Article 13(2).

• To nullify the Golaknath ruling, Parliament enacted two major amendments:
– 24th CAA (1971): Changed the heading from “Procedure for Amendment” to “The Power of Parliament to amend the Constitution and procedure thereof.” It also inserted Articles 13(4) and 368(3) to restrict judicial review.
– 25th CAA (1971): Curtailed (but did not remove) the Right to Property and added Article 31C, giving precedence to Article 39(b) (distribution of material resources for common good) and Article 39(c) (preventing the operation of economic system from concentration of wealth and means of production) over Fundamental Rights. It also shielded laws enacted under 39(b) and (c) from judicial review under Articles 14, 19, and 31.

• Keshavananda Bharati vs. State of Kerala (1973): The Supreme Court established that Fundamental Rights in Indian Constitution, as not part of basic structure, could be amended by the State for social welfare, but only as long as such laws did not violate the “Basic Structure” of the Constitution. The Court asserted that any constitutional law or amendment would be subject to judicial review to determine if it adhered to this basic structure. The Court upheld the first part of Article 31C (the precedence of Articles 39(b) and 39(c) over Fundamental Rights) but struck down the second part that sought to protect these provisions from judicial review, asserting that judicial review itself was part of the Basic Structure.

• The ruling in Keshavananda Bharati was later challenged through the 42nd Amendment Act (1976), often called the “Mini-Constitution.” It attempted to give Parliament unrestricted power to amend the Constitution through Article 368(5), and barred courts from reviewing any constitutional amendment under Article 368(4), whether enacted before or after the 42nd Amendment. It also extended the first part of Article 31C to all Directive Principles, giving them primacy over Fundamental Rights in Indian Constitution.

• Minerva Mills vs. Union of India (1980): The Supreme Court clarified that maintaining a balance between the Directive Principles and Fundamental Rights is part of the basic structure. It held that Parliament cannot destroy or damage the basic structure of the Constitution. Consequently, Articles 368(4), 368(5), and the expanded portion of Article 31C (to cover all DPSP) were declared as unconstitutional.

• Waman Rao vs. Union of India (1981):This judgment validated all constitutional provisions, laws, and amendments included in the Ninth Schedule under Article 31(B) prior to the Kesavananda Bharati verdict (i.e., before April 24, 1973). The Court gave prospective effect to the Basic Structure doctrine, meaning any law or amendment inserted into the Ninth Schedule after April 24, 1973, would be subject to judicial review.

• I.R. Coelho vs. State of Tamil Nadu (2007): The Supreme Court clarified that there should be no blanket immunity from judicial review for laws placed in the Ninth Schedule. It reiterated that Judicial Review under Article 13 is a basic structure element itself. Therefore, any law or amendment inserted into the Ninth Schedule post April 24, 1973, can be reviewed by the Judiciary if it is challenged for violating the Golden Triangle of Part III (Articles 14, 19, and 21) of the fundamental rights in Indian Constitution.

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The remaining Articles of the fundamental rights in Indian Constitution have been included in separate consecutive blogs. Which can accessed through the hyper-links in this blog or though the home page.