Fundamental Rights

A right is a justified claim. It is something a person is entitled to as a human being and as a citizen. The rest of society must recognise and uphold it. The most important rights are written into the Constitution as Fundamental Rights. To understand them, we look first at what a right is in general, and then at the rights the Indian Constitution guarantees.

The key word in a right is justified. Wanting something is not the same as having a right to it. A student may want to skip the school uniform or stay out late at night. These are wants, and they are not rights. Rights are the claims that we together see as necessary for a life of dignity and self-respect. The right to a livelihood, the right to free expression and the right to education are good examples. An activity that harms a person's health or harms other people cannot be claimed as a right.

Rights rest on two grounds. The first ground is dignity and self-respect. A livelihood gives a person economic independence. Free expression lets them be creative and lets democracy work. The second ground is well-being. Education builds a person's power to reason and to make good choices. Rights like these matter to every person in society, so we call them universal.

In the seventeenth and eighteenth centuries, thinkers said that rights come from nature or from God. These natural rights were the right to life, the right to liberty and the right to property. No ruler had given them, so no ruler could take them away. This made natural rights a powerful weapon against unjust power.

Today we more often say human rights than natural rights. The idea of a law written by nature no longer convinces most people. The modern ground is simpler. Every person is unique and equally valuable, so everyone is entitled to certain things simply for being human. This is Kant's moral view of rights. It rests on two rules. We should treat others as we would like to be treated. We should never treat a person as a mere tool for our own ends. The United Nations adopted the Universal Declaration of Human Rights on 10 December 1948. It builds on this idea. The Declaration recognises rights such as the right to education, equal access to public service in one's country, and a standard of living adequate for health and well-being, including food, clothing and housing. The list of recognised rights keeps growing as societies meet new challenges, such as the need for a clean environment.

A moral claim gains real force when the law stands behind it. This is why many countries write a Bill of Rights into their constitution. The constitution is the highest law of the land. In India we call these rights Fundamental Rights. We also added rules of our own to deal with our history. The ban on untouchability is one example.

Most rights are claims on the state. They place a double duty on it: the state must act, and it must also hold back. The state must act when it provides schooling or punishes those who harm us. But it cannot arrest a person at will. It must justify any arrest before a court. This is why the police need a warrant. The state is sovereign, but it exists for the sake of the individual and not the other way round.

Democracies recognise several kinds of rights, and each kind builds on the one before it.

• Political rights give a citizen a say in government. They include the right to vote, the right to contest elections and the right to form or join political parties. In India, the right to vote and to be elected has a precise legal status: it is a constitutional right. It flows from Articles 325 and 326 of the Constitution and is given shape by the Representation of the People Act. It is not a Fundamental Right, and it is not a natural right.
• Civil liberties protect the person. They include a fair trial, free expression and the right to protest. Together with political rights they form the base of democracy.
• Economic rights matter because political rights mean little to a person who is struggling for food and shelter. States therefore provide for basic needs through schemes for housing, health care or rural employment.
• Cultural rights are now recognised too. They include the right to study in one's mother tongue and the right to set up institutions that teach one's language and culture.

Rights are not a one-way street. They place duties on each of us as well. The first duty is to protect the common good. Clean air, clean water and the forests must be kept safe for ourselves and for future generations. The second duty is to respect the equal rights of others. The right to free speech does not allow a person to stir up a crowd to harm a neighbour. The third duty is to balance rights when they clash. A person's freedom to take photographs does not override another person's right to privacy. The fourth duty is to stay alert. Governments sometimes cut civil liberties in the name of national security, and such powers can be misused. Rights are never absolute. But they are the base of a democratic society, so we must guard our own rights and the rights of others.

Fundamental Rights are the basic rights that the Constitution guarantees and protects with special care. They are listed in Part Three of the Constitution. They differ from ordinary legal rights. An ordinary right can be changed by a simple law. A Fundamental Right can be changed only by amending the Constitution itself. No organ of the government may violate them. The courts can strike down any law or action that does. They are not unlimited: the government can place reasonable restrictions on them. The Constitution lists six Fundamental Rights.

Not every Fundamental Right is open to every person. The Constitution splits them into two groups:

• Citizens only: Articles 15, 16, 19, 29 and 30 are available only to Indian citizens.
• All persons: Articles 14, 20, 21 and 25 extend to foreigners as well.

A British citizen staying in India can therefore claim equality before the law under Article 14, but cannot claim the freedom of trade and profession under Article 19. That freedom belongs to citizens alone.

The Right to Equality runs from Article 14 to Article 18. It guarantees equality before the law and equal protection of the laws. It bans discrimination on grounds of religion, race, caste, sex or place of birth. It gives equal access to shops, hotels, wells and other public places. It promises equal opportunity in public employment. It abolishes untouchability and the use of titles. The Constitution also allows special help for women, children and backward classes. Article 16 makes clear that reservation in jobs is not a breach of equality. Reservation under Article 16(4) is not an unchecked power, though. The Supreme Court has held that it is tempered by Article 335, which requires that the claims of the Scheduled Castes and Scheduled Tribes be taken into consideration consistently with the maintenance of efficiency of administration. Article 335 mentions efficiency of administration, but it does not define the phrase.

The Right to Freedom protects six freedoms under Article 19(1):

• (a) speech and expression
• (b) peaceful assembly without arms
• (c) forming associations or unions
• (d) moving freely throughout India
• (e) residing and settling anywhere in India
• (g) practising any profession, trade or business

The old freedom to acquire property (Article 19(1)(f)) was removed by the 44th Amendment (1978). Each freedom carries "reasonable restrictions". For free speech, these include the sovereignty and integrity of India, security of the State, public order, decency, morality, contempt of court, defamation and incitement to an offence.

Freedom of speech and expression under Article 19(1)(a) also includes the right to remain silent. The Supreme Court held this in Bijoe Emmanuel (1986), the National Anthem case. Students who stood respectfully during the anthem but did not sing it had committed no offence. No legal provision obliges a person to sing the National Anthem.

The most important part is the right to life and personal liberty under Article 21. No person may be deprived of life or liberty except by a "procedure established by law". Over the years the courts have read this short article very widely:

• The landmark ruling was Maneka Gandhi (1978): the Court held that the procedure must be fair, just and reasonable, importing American-style due process.
• It now covers the right to live with dignity and the right to a livelihood.
• It covers the right to privacy (held a Fundamental Right by a nine-judge bench in Puttaswamy (2017)).
• It covers the right to marry a person of one's choice (Shafin Jahan / Hadiya).

Article 20 sits alongside it and bars three things: any ex-post-facto law, double jeopardy and self-incrimination. Articles 20 and 21 are the two rights that can never be suspended, even during a National Emergency.

Article 22 protects an arrested person. They must be told the grounds of arrest. They may consult and be defended by a lawyer of their choice. They must be produced before a magistrate within twenty-four hours of arrest. These ordinary arrest safeguards do not extend to an enemy alien or to a person held under preventive detention. Preventive detention lets the state detain a person it fears may act against public order or State security, without trial. The power is easily misused. Detention beyond three months requires the approval of an Advisory Board of persons qualified to be High Court judges.

The exclusion is not total, and exams probe this fine point. The Constitution does not exempt the State from providing legal counsel to a person held under preventive detention. The detainee must still be informed of the grounds of detention and must be given the earliest opportunity to make a representation against it.

After an arrest, custody takes one of two forms:

• Police custody: the accused is held in a police-station lock-up, under the control of the police, usually for interrogation.
• Judicial custody: the accused is held in jail under the order of the magistrate, not in a police-station lock-up. During judicial custody, the police may interrogate the accused only with the approval of the court.

Parole is the temporary release of a convict for a fixed period. It is a concession, not a right. It can be denied even when the prisoner makes out a sufficient case for release. Each State Government frames its own Prisoners Release on Parole Rules, so the conditions vary from state to state.

Two related provisions often appear with this theme. Article 355 places a duty on the Union to protect every state against external aggression and internal disturbance. The Prevention of Terrorism Act (POTA), 2002, a now-repealed anti-terror law, provided that a confession made by the accused to the police could not be used as evidence against them.

The Right against Exploitation has two articles:

• Article 23 bans traffic in human beings (buying and selling of people, including bonded labour and prostitution) and all forms of forced labour. Forced labour exacted without payment is called begar. This right is available against private individuals, not only the State. The State may impose compulsory service for a public purpose (such as military conscription) without it counting as forced labour.
• Article 24 forbids the employment of any child below the age of fourteen in a factory, mine or other hazardous work. It is an absolute right with no exceptions.

Note for exams: abolition of untouchability falls under the Right to Equality (Article 17), not here. Protection of minority interests falls under the Cultural and Educational Rights, not here.

The Right to Freedom of Religion runs from Article 25 to Article 28:

• Article 25 gives every person freedom of conscience and the right to freely profess, practise and propagate religion. It also includes the freedom to follow no religion at all.
• Article 26 lets every religious denomination manage its own affairs, own property and establish institutions.
• Article 27 says no person can be compelled to pay a tax whose proceeds go to promoting any particular religion.
• Article 28 bars religious instruction in schools wholly funded by the State.

This freedom is not unlimited. The state may restrict it to protect public order, morality and health. It has used this power to ban harmful practices such as sati and human sacrifice. India has no official religion. The state treats all religions equally. This equal treatment of all religions is the heart of Indian secularism.

India is a land of great diversity. Cultural and Educational Rights protect that diversity through two articles:

• Article 29 lets any section of citizens with a distinct language, script or culture conserve it. It also bars denial of admission to any State-aided institution on grounds of religion, race, caste or language.
• Article 30 gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. It bars the State from refusing aid to a school only because a minority manages it.

Two further points complete the minority theme. The Prime Minister's 15-Point Programme is a scheme of the central government for the welfare of minorities, covering areas such as education, employment and credit. It is an executive programme, not a constitutional guarantee. The Constitution itself provides no automatic nomination of a member of a minority community to the Lok Sabha.

A list of rights means little if there is no way to enforce it. The Right to Constitutional Remedies (Article 32) is that way. Dr B.R. Ambedkar called Article 32 the "heart and soul" of the Constitution. The right to move the Supreme Court under Article 32 is itself a Fundamental Right. A citizen can approach the Supreme Court directly when a Fundamental Right is violated. The same writ power is given to the High Courts under Article 226. That power is actually wider: High Courts can issue writs for ordinary legal rights too, not just Fundamental Rights.

The court can then issue five special orders called writs:

• Habeas corpus: ("have the body") orders that a detained person be produced before the court, so it can check the detention is lawful.
• Mandamus: ("we command") orders a public official or body to perform a legal duty it has failed to do.
• Prohibition: issued by a higher court to a lower court or tribunal to stop it exceeding its jurisdiction (preventive).
• Certiorari: ("to be certified") issued to a lower court to quash an order it has already passed without jurisdiction (curative).
• Quo warranto: ("by what authority") questions a person's right to hold a public office.

The Constitution also contains the Directive Principles of State Policy in Part IV (Articles 36–51). These are guidelines that ask the government to work for welfare and justice. Article 39 is the most-tested. It directs the State to secure a decent livelihood and equal pay for equal work. Under Article 39(c), it also requires that wealth and the means of production are not concentrated to the common detriment. They differ from Fundamental Rights in one key way: they cannot be enforced in a court. So they are called non-justiciable, yet they are declared "fundamental in the governance of the country". Fundamental Rights restrain the government. The Directive Principles urge it to act. The two are meant to work together.

The Constitution also lists the Fundamental Duties in Part IV-A (Article 51A). They were added by the 42nd Amendment (1976) on the recommendation of the Swaran Singh Committee. Like the Directive Principles, they are non-justiciable: there is no legislative process to enforce them. They are also not correlative to legal duties. They include duties to abide by the Constitution, to uphold and protect the sovereignty, unity and integrity of India (Article 51A(c)), to protect the environment and to develop a scientific temper. The duty to provide opportunities for education to one's child between six and fourteen years (Article 51A(k)) was added by the 86th Amendment (2002), matching Article 21A.

Beyond the six categories, exams test a set of precise points:

• Article 12, "the State": for Part III, the State means the Union government and Parliament, the state governments and legislatures, and all local and other authorities, so the rights can be claimed against all of them.
• Article 13, void laws: any law inconsistent with the Fundamental Rights is void to that extent. This is the basis of judicial review.
• Seven became six: the Right to Property was dropped as a Fundamental Right by the 44th Amendment (1978) and made an ordinary legal right under Article 300A (right to property, outside Part III). The 44th Amendment was enacted by the Janata government, not by a Congress government. The Article 300A right is available to any person, not only to citizens. Do not confuse it with Article 301, which deals with freedom of trade, commerce and intercourse, not property.
• Absolutes: most rights carry reasonable restrictions, but Article 17 (untouchability) and Article 24 (child labour in hazardous work) are absolute, and a few (Articles 15(2) (access to public places), 17, 23, 24) bind even private individuals.

A few rulings and provisions add to what the six categories already teach:

• Article 14, two phrases: equality before the law is a negative idea (no special privileges), while equal protection of the laws is a positive one (equal treatment in equal circumstances).
• Indra Sawhney (Mandal) case: the Court capped reservation at 50%, upheld OBC reservation and introduced the creamy layer.
• Article 21A: added the right to education (ages 6–14) by the 86th Amendment (2002).

A short list of amendments turns on who passed them and how the courts answered:

• 1st Amendment (1951): enacted to overcome Supreme Court rulings that had struck down land-reform laws. It inserted the Ninth Schedule, which shielded the laws placed in it from challenge under the Fundamental Rights.
• 39th Amendment (1975): placed the election of the Prime Minister beyond judicial review. The change was later undone. A common trap attributes this to the 44th Amendment; it was the 39th.
• 99th Amendment (NJAC): created the National Judicial Appointments Commission for appointing judges. The Supreme Court struck it down in 2015 for violating the independence of the judiciary.

Article 21A works through the Right to Education (RTE) Act. Three points about its machinery are tested:

• Teacher qualifications: minimum qualifications for teachers are laid down by the NCTE (National Council for Teacher Education), an academic authority of the central government, not by state teacher councils.
• Eligibility test: a person must pass a Teacher Eligibility Test (TET), conducted in accordance with NCTE guidelines, to be eligible for appointment as a primary teacher.
• Who trains teachers: most teacher-education institutions in India are privately run.