Fundamental Rights of Indian Constitution: Article12-35 [Indian Polity Notes for UPSC Exams]

Fundamental Rights

Fundamental Rights represents the essential human rights that are universally recognized as inherent to all individuals irrespective of their nationality, place of residence, sex, ethnic origin, color, religion, language, or any other status. In the context of India, these Fundamental rights are given in the Indian Constitution, specially in Part III (Article 12 to 35), guaranteeing civil liberties to each citizen to lead a life of dignity and freedom, while also imposing upon the state the duty to protect rights from infringement.
These Fundamental rights are crucial in democracy as they ensure the individual’s comprehensive protection from any arbitrary actions by the state or other entities.

Historical Background of Fundamental Rights

• ‘Magna Carta’, the charter of rights issued by the King of England in 1215, is considered the first written document pertaining to the Fundamental rights of citizens.
• Other sources of fundamental rights are:

1. 1. The Bill of Rights, 1869, from England;
   2. The United States Bill of Rights, 1787;
   3. The Declaration of the Rights of Man, 1789 from France.

• In India, the evolution of fundamental rights can be seen in the 19^th century with the creation of the Indian National Congress, which sought the end of the ‘rule of difference’, which means that while the rule of law and the rights to liberty and equality were assured within Britain, the same principles did not apply in the colonies.
• Similar demands came in the form of the ‘Constitution of India Bill’ or the Swaraj Bill in 1895, which talked about the right to speech, the right to franchise, Free State education, etc.
• In the early twentieth century, several resolutions were passed, and committee reports were made demanding these rights. For instance, The Commonwealth Bill of India Bill 1925, drafted by Annie Besant, the Nehru Report of 1928, the Sapru Report of 1945 and the sub-committee of the constituent assembly on Fundamental rights.

What are Fundamental Rights?

Fundamental Rights are claims of an individual necessary to ensure one’s happiness, without compromising the happiness of others.

The idea of Fundamental rights as a claim to a life of freedom and dignity, irrespective of one’s caste, race, birth, class, gender, etc., became influential in the freedom struggle against British colonial rule. The struggle sought to bring in conditions where the Indian people could be assured of these rights by virtue of being human. These aspirations are reflected in the fundamental rights enshrined in Indian Constitution.

Fundamental Rights Vs Ordinary Rights:

Ordinary rights are protected and enforced by ordinary law and, therefore, can be changed or repealed by the legislature through the ordinary law-making process. On the other hand, fundamental rights are protected and guaranteed by the Constitution of a State and, therefore, cannot be altered by any process except for the amending of the Constitution itself.

Fundamental Rights of Indian Constitution,  are detailed in the Part III of the Constitution (Article 12 to 35).

The fundamental rights enshrined in the Constitution seek to bring into practice the principles of human rights, assuring each individual a life of dignity. They set the parameters of obligations and responsibilities that a modern state owes to its citizens.

1. The term “fundamental” implies that these rights are so significant that the Constitution specifically lists them and makes provisions to safeguard them. The Fundamental Rights of Indian Constitution are so crucial that the Constitution itself ensures that they are not infringed by the government.
2. The object behind the inclusion of fundamental rights in the Constitution is to establish a “limited government”- a government in which the absolute power is not vested in any of the organs of the State.

Features of Fundamental Rights of Indian Constitution

1. Judiciary as protector of Fundamental rights of India:
   • The judiciary has the authority and responsibility to protect fundamental rights of Indian Constitution from violations by the executive or the legislature.
   • It can nullify any executive decision or legislative action if it violates or goes beyond the ambit of the Constitution (Ultra vires).
   • This is what makes fundamental rights fundamental.
2. Justiciable Rights: The Indian Constitution allows a person to move directly to the Supreme Court to reinforce fundamental rights when violated or restricted.
3. Fundamental rights are not absolute:
   • Most fundamental rights are qualified rights rather than unlimited rights. These rights are subject to reasonable restrictions mentioned in the Constitution itself. It strikes a balance between individual rights and social control.
   • Further, they can be amended by the Parliament, although without affecting the basic structure of the Constitution.
4. Differentiates between citizens and aliens: Some fundamental rights are exclusive to the citizens, while others are available to citizens, foreigners or legal entities like companies.
   

   

5. Differentiates between State and individuals: Most of these Fundamental rights are available against the State’s action with few exceptions, like those against private individuals. When the rights that are available against the state actions only are violated by individuals, then there is no constitutional remedy, but only ordinary legal remedies.
6. Positive and Negative nature: While some fundamental rights confer certain privileges on the person, some are negative in character and places limitation on the authority of states.
   • For example, Article 21 says that “state cannot deprive a person of his life and personal liberty except by the procedure established by law”. This puts a limit on the State and thus is a negative right.
   • The right to education under Article 21A is a positive right which confers certain privileges on citizens.
7. Status during Emergency: Except for Articles 20 and 21, fundamental rights can be suspended during the operation of a national emergency. Further, the six rights guaranteed under Article 19 can be suspended only during external emergencies.
8. Laws needed for enforcement: Most fundamental rights are directly enforceable and do not need specific law. But, some of them require a law to enforce them, and such laws can only be enacted by the Parliament (Article 35).

Limitations on Fundamental Rights:

• • The following provisions limit the scope of the fundamental rights:

1. • 1. Article 31A: Saving of laws provided for the acquisition of estates against the right to property
     2. Article 31B: Validation of certain laws included in the 9^th schedule that may go against certain rights.
     3. Article 31C: Saving of laws for giving effect to Directive Principles.
   • Application on armed forces, paramilitary, police forces, intelligence agencies and other such services can be limited or abrogated by the Parliament (Article 33).
   • Application is restricted during Martial law (military rule) (Article 34).

Fundamental Rights of Indian Constitution (Article 12-35)

The Indian Constitution initially listed 7 Fundamental Rights, reflecting the core values of freedom, equality, and brotherhood. Following the 44th Amendment in 1978, the Rights to property was reclassified, resulting in the current 6 Fundamental Rights detailed in Articles 12 to 35. This change highlights the constitution’s ability to adapt to societal changes, ensuring the protection of individual liberties and promoting unity within the structure of a progressive democracy.

Article 12 – Definition of State

• Since fundamental rights of India are supposed to check the absolute power of the State, they will be enforced against the State. Hence, there needs to be clarity regarding what constitutes the State. The definition of State is given in Part III, Article 12 of the Constitution. According to it, the definition of State includes:

1. 1. The Government and the Parliament of India – which would include legislative and executive organs of the union;
   2. The Government and Legislature of each State – which would include legislative and executive organs of the State;
   3. Local Authorities within the territory of India – such as a zilla panchayat, municipalities, the District Boards, Port Trusts, etc.;
   4. Other authorities within the territory of India and under the control of the government, statutory or non-statutory authorities like LIC, ONGC, etc.

• As we can see, the State has been defined in a wider sense to include all state agencies that can be challenged in court on the grounds of violation of fundamental rights. Supreme Court, in a judgement, has further widened the definition by including even a private body if it works as an instrument of the State.
• Article 12 does not define ‘judiciary’ in any particular way. The judiciary as the State can be interpreted for narrow purposes only. Its functions can be categorised into judicial and non-judicial. Only non-judicial functions, such as administrative functions, can be challenged on the grounds of the violation of fundamental rights.

Article 13 – Laws Inconsistent with Fundamental Rights

• Article 13 of Indian Constitution addresses all laws that are inconsistent with fundamental rights or derogate them. According to it, all such provisions of laws in force before the commencement of this Constitution that are not consistent with the provisions of Part III of the Constitution shall become void.
• Further, the Parliament and State legislatures are prohibited from making any law which takes way fundamental right.
• Hence, it forms the basis of the judicial review doctrine and aids the court and citizens in checking the misuse of powers by the legislature and executive.

What constitutes as a law?

The term ‘Law’, which cannot be inconsistent with Part III of the constitution covers the following types of laws:

1. Permanent laws that are enacted by the Parliament of India or legislatures of the states.
2. Temporary laws, like ordinances by the President or the governors of the State.
3. Statutory instruments like delegated legislation, i.e. executive legislation, as regulation or notification, order, rule or by-law.
4. Non-legislative sources of law, i.e. customs with the force of law.

Can Constitutional amendments be Judicially reviewed if they are inconsistent with the constitution?

• Article 13 does not list Constitutional amendments as laws; hence, for a long time, it was believed that they cannot be challenged and that the Parliament is fully competent to make any amendment. [Shankari Prasad Case, 1951]
• This led to several changes even in Part III of the Constitution. A very concerned Supreme Court, then in Golaknath Case, 1967 stated, that the Parliament is not a Constituent Assembly. A Constitutional amendment is a legislative process and comes under the definition of ‘Law’ in Article 13 of Indian Constitution. Thus, all constitutional amendments must be consistent with Part III (Fundamental Rights). And therefore, fundamental Rights were “Transcendental and Immutable”.F
• 24th Amendment Act, 1971 inserted an additional Clause in Article 13(clause 13(4)) that constitutional amendment should not be covered in the definition of ‘Law’. This was done to prevent the amendments in Part III of the Constitution from being challenged in the Supreme Court on the argument of ‘inconsistency’ with Part III.
• In the Kesavanand Bharti case (1973), the Supreme Court accepted the 24th amendment, once again making it competent for the Parliament to amend the fundamental Right. However, these amendments could not violate the ‘Basic structure’ of the Constitution and, therefore, can be challenged in the Supreme Court.

Related FAQs of Fundamental Rights

What exactly are Fundamental Rights in the Indian Constitution?

Fundamental Rights are essential human rights guaranteed by the Indian Constitution (Articles 12 to 35). They protect individuals against arbitrary actions of the State and ensure a life of dignity, freedom, and equality for all citizens.

Why are Fundamental Rights called “Fundamental”?

They are called “Fundamental” because they are guaranteed by the Constitution itself and cannot be taken away easily. They form the foundation of Indian democracy and are essential for the personal development and protection of individuals.

Can Fundamental Rights be taken away or limited?

Yes, but only in special situations. Fundamental Rights are not absolute. The Constitution allows reasonable restrictions in the interest of public order, security, and morality. Also, during a National Emergency, certain rights like Article 19 can be suspended.

What happens if someone’s Fundamental Rights are violated?

If someone’s Fundamental Rights are violated, they can directly approach the Supreme Court (Article 32) or High Court (Article 226) for protection. The courts can issue writs like Habeas Corpus, Mandamus, and Certiorari to enforce these rights.

Are Fundamental Rights available only to Indian citizens?

Not all. Some Fundamental Rights like Article 14 (Equality before Law) and Article 21 (Right to Life and Liberty) apply to everyone — citizens and foreigners. But rights like Article 15, 16, 19, and 29 are exclusive to Indian citizens only.