FUNDAMENTAL RIGHTS

  • Based on the Bill of Rights of the USA. 
  • Called as the fundamental rights because these rights are most important for the physical, spiritual, and mental development of an individual and thus for a healthy functioning of the democracy. 
  • These are given in the part-III of the constitution from Article 12 to Article 35. 

Constitution Provides For Six Fundamental Rights 

  • Right to equality (Articles 14-18) 
  • Right to freedom (Articles 19-22) 
  • Right against exploitation (Articles 23,24) 
  • Right to freedom of religion (Articles 25-28) 
  • Cultural and educational rights (Articles 29,30) 
  • Right to constitutional remedies (Article 32)

Fundamental Rights

Article 13 

Provides for the laws inconsistent with or in derogation of the fundamental rights. 

  • All laws in force in the territory of India immediately before the commencement of this Constitution, so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void. 
  • The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 
  • In this article, unless the context otherwise required: 
    i. Law includes any of the ordinances, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. 
    ii. Laws in force includes laws passed or made by a Legislature or any other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, not-withstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. 
    iii. Nothing in this Article shall apply to any amendment of this Constitution made under the Article 368. 

Judicial Review 

  • Judicial review is adopted from the Constitution of the United States of America and the Indian Constitution. Judicial review actually refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 deals with that. 
  • All the post-Constitution laws differ from it in all or some of its provision then the provisions of the Constitution will prevail and the provision of that post constitution relating to the same matter. 
  • In such a situation the provision of that law will again come into force .this is called the Theory of Eclipse. 
  • In a similar way, laws made after adoption of the Constitution by the constituent assembly must be compatible with the Constitution, otherwise the laws and amendment will be deemed to be void-ab-initio. 

Right to Equality 

Article 14 

  • Equality before law or equal protection of law 

Article 15 

  • Prohibition of discrimination on grounds of religion, race, caste, creed, sex, or place of birth 

Article 16 

  • Equality of opportunity in matters of public employment 

Article 17 

  • Abolition of untouchability

Article 18 

  • Abolition of titles 

Right to Freedom 

Article 19 

All citizens shall have the right 

  • To freedom of speech and expression 
  • To assemble peaceably and without arms 
  • To form their associations or unions 
  • To move freely throughout the territory of India 
  • To reside and settle in any part of the territory of India 
  • To practice any profession, or to carry out any occupation, trade or business 

Article 20 

Protection in respect of conviction for offence

Article 21 

Protection of life and personal liberty 

Article 22 

Protection against the arrest and detention in certain cases 

Right against Exploitation 

Article 23 

Prohibition of traffic in human beings and forced labour 

Article 24 

Prohibition of employment of children in factories, etc. 

Right to Freedom of Religion 

Article 25 

Freedom of conscience and free profession, practice, and propagation of religion 

Article 26 

Freedom to manage religious affairs 

Article 27

Freedom of payment of taxes for promotion of any particular religion 

Article 28 

Freedom to attend religious instruction or religious worship in certain educational institutional institutions 

Cultural and Educational Rights 

Article 29 

Protection of interests of minorities regarding their language, script, and culture 

Article 30

Rights of minorities to establish and administer educational institutions 

Right to Constitutional Remedies 

Article 32 

Remedies for enforcement of rights conferred by this part 

  • The right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by this part is guaranteed.
  • The Supreme Court shall have the power to issue directions or orders or writs, including the writs in the nature of habeas corpus, mandamus, prohibition, quo warrant°, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part. 
  • Without prejudice to the powers conferred on the Supreme Court by the clauses (1) & (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). 
  • The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution of India. 

Amendability of Fundamental Rights 

  • In the case of Shankariprasad vs. Union of India, the Supreme Court held that the parliament has the power to amend any part of the Constitution including fundamental rights. 
  • But in the case of Golak Nath vs. The State of Punjab (1967), the Supreme Court declared that the ordinarily elected parliament does not have the right to amend the fundamental rights included in the part III of the Constitution which were quite sacred. 
  • The judgment of the Supreme Court laid down that although the past amendments of the fundamental rights were to be valid as upsetting them would mean that a lot of administrative decisions would be affected but in future, the parliament would not have any right to amend the fundamental rights. The Supreme Court further declared that a Constituent Assembly should be convened to amend the fundamental rights.
  • By the 24th Amendment Act, 1971, Article 13 and Article 368 were amended. The main purpose of this amendment was to counter the effects of the decision of the Supreme Court, in the case of Golak Nath vs. The State of Punjab, to restore back to the parliament its right to amend any part of the Constitution including the fundamental rights, included in part III of the Constitution.