Fundamental Right

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Subject: Political Science

Constitutional Democracy and Government in India
Lesson: Fundamental Right
Lesson Developer: Dr. Anusha, Assistant Professor

College / Department: Department of Political Science,
Miranda House, University of Delhi
1 Institute of Lifelong Learning, University of Delhi
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Table of Contents
 Introduction
 History of Fundamental Rights in India
 Constituent Assembly Debates
 Constitutional Provisions
 Working of the Parliament and the Judiciary in the context of Fundamental Rights
 A Critical Analysis
 Conclusion
 Glossary
 Exercises
 References

Introduction
The vision of liberty, equality, justice, fraternity, peace, prosperity and so on envisaged in
the speech of Jawaharlal Nehru, ‘Tryst with Destiny’ for independent India was given shape
in the form of a Constitution. Various norms and principles were laid down in the
Constitution for both the citizens and the government of India to achieve the
abovementioned vision into a reality. These include limits on the powers of the government,
along with space for rights and duties of individuals as well as groups/collectives. We can
say that the Constitution gives room for multiple identities of individuals and groups in
terms of religion, sex, caste and so on. Nevertheless, the document also asserted the
fundamental collective identity of being an Indian, and hence the notion ‘unity in diversity’.
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History of Fundamental Rights in India
The idea that human beings have fundamental rights and that the social/political
arrangements of the society must recognize the worth of every human, along with
facilitating the exercise of those rights has been an accepted norm of every democratic
society. The scholars of political theory have been occupied in a major way to delineate the
tradition of rights. S.K.Chaube opines that the sense of rights in terms of entitlement cannot
be seen in ancient political theory. In this context, rights primarily meant what was
appropriate or logical.
The seeds of rights in terms of entitlement could be traced back to Magna Carta of
thirteenth century, where King John enunciated that no person could be detained without

trial. This was followed by an era of liberal political theory, with scholars like Hobbes and
John Locke who came up with the concept of natural rights of life, liberty and later property.
Subsequently, a petition of rights was given by the British Parliament in 1628, which paved
the way for Declaration of Rights in 1689. However, it should be noted that the Constitution
of England was unwritten.
Incorporation of rights in a written form came up with the American Bill of Rights (enclosed
in the first Ten Amendments of the Constitution of the USA) in 1791. These rights were
termed as fundamental rights, as they could not be violated by the state. The US rights
further progressed through amendments in 1865, 1866, 1870, 1919 and in 1962.
In the present times, the ambit of protection of rights under the name of human rights have
been strengthened with United Declaration of Human Rights along with other international
conventions and treaties. Thus, the issue of preservation of rights has assumed a universal
dimension.
The fundamental rights are meant to be sheltered from the abuses of both the legislative
and executive bodies of the government. In the United States, the declarations of the
American Bill of Rights are absolute, to the extent that they have the concept of ‘judicial
supremacy’ which can declare any Congressional Act as unconstitutional for breaching any
provision of Bill of Rights and also it the Judiciary in the United States which can alter any
fundamental right in the instance of national emergency or any kind of threat to the State.
The Indian Constitution can be seen as a balance between parliamentary sovereignty of

England and judicial supremacy of the United States. Our Parliament is constrained by a
written constitution, unlike England. Hence, if any provisions of the Constitution like
Fundamental Rights are transgressed by any act of the Legislature or the Executive, then in
that case the Supreme Court or the High Courts are competent to declare that law as void.
Also it should be noted that the degree of judicial supremacy in India in declaring these laws
as void are less intense as compared to the American model. We are saying this because in
the United States the power of the State to impose restrictions on fundamental rights had to
be evolved by the Judiciary, while in India this power has been bestowed upon the
Legislatures by the Constitution itself, along with a window for judicial review, where the
Judiciary can determine whether the restrictions imposed by the Legislature are reasonable
enough to impose restrictions on Fundamental Rights.

Another specificity of our Constitution is that we have recognition for both individual as well
as group rights in the spheres of religion, culture and education. The main rationale behind
this is that the political philosophy of our Constitution was based on welfare philosophy of
the twentieth century, while the American model was guided by laissez faire doctrine.
In the context of our country, we can say that the importance of rights was realized when
we were fighting against the colonial forces. The formation of Indian National Congress in
1885 implicitly held that Indians wanted the same rights as the British. The first major
document openly demanding for Fundamental Rights was The Constitution of India Bill,
1895. Even though the Simon Commission and the Joint Parliamentary Committee rejected
the proposal of the affirmation of fundamental rights on the grounds that there are no
means to make them effective. In spite of this, Motilal Nehru Committee claimed a bill of
rights in 1928. The resolution on fundamental rights was adopted by the Indian National
Congress in 1931, along with this towards the end of 1930s Nehru started Civil Liberties
Union in order to provide legal aid to the freedom fighters. And the last major document in
the pre-Assembly period was in the Sapru Report which came out with a constitutional
outline dealing with portions of Fundamental Rights. The discussion on Constituent
Assembly debates has been done in the next section.
At this juncture, the distinction between Fundamental Rights and ordinary legal rights needs
to be taken into account. The former are entailed and guaranteed by the Constitution,
accordingly they may be altered by amending the Constitution itself, while the latter are put
into effect by ordinary law and could be modified by the legislature or by regular procedure
of law making. The protection of Fundamental Rights by the Constitution also entails that
the judiciary can declare executive plus legislative acts illegal, if by any means they violate
fundamental rights. Further, violation of Fundamental Rights is remedied by resorting to
Article 32 which is direct recourse to the Supreme Court and which also includes the issue of
judicial summons against a public authority contravening Fundamental Rights. While
infringement of legal rights could be remedied by resort to Article 226 i.e. by approaching
the High Court or by a regular suit.
Value Addition
In some Constitutions, the sanctity of Fundamental Rights is

maintained to the extent that they are completely immune from
any5sort of constitutional
Institute of Lifelongamendment. But in India,
Learning, University all parts of
of Delhi
the Constitution can be amended except the ‘basic features’ of
the Constitution which was laid down in the Kesavananda
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We need to understand that Fundamental Rights are a guarantee against not only the State
but also against private individuals. It should be noted that the term State has been given a
definition in Article 12, which includes Executive, Legislature as well as local and other
authorities like municipal bodies. Also if any individual act violating Fundamental Rights is
put into effect by any government authority, then that also becomes an act of the State.
Thus, the term State has been given a wide understanding , so that no government organ
can have the whim to act in an arbitrary way.
As far as protection from private individuals are concerned, we have provisions like Article
15(2) i.e. equality in access to places of public resort; Article 17 i.e. prohibition of
untochability; Article 23 i.e. prohibition of traffic in human beings and so on.
Nonetheless, that does not imply that fundamental rights are absolute in nature, there are
certain restrictions on its exercise as well. First, we need to comprehend that the
Parliament has the power to alter the appliance of fundamental rights. For instance, Army
and Air Force Acts of 1950 and the Navy Act of 1957 can restrict the Fundamental Rights of
defence personnel in order to uphold the security of the country. Second, when Emergency
is pronounced by the President under Article 352, then the Fundamental Rights will remain
suspended. This implies that the protections available against the legislative and executive
authorities are withdrawn, thus the limitations meant for the state under Article 19 are not
applicable. This increase in the power of state given under Article 358 works till the
Emergency prevails, further under Article 359 the right to move to the court for the
enforcement of Fundamental Rights remain suspended.
Constituent Assembly Debates
The Fundamental rights Sub-Committee comprised Rajkumari Amrit kaur, Hansa Mehta,
Acharya Kripalani, Minoo Masani, K.T.Shah, A.K.Ayyar, K.M.Munshi, Maulana Azad,
B.R.Ambedkar and K.M.Panikkar. They met for the first time in February 1947. After several
rounds of discussions, the drafting of the rights was completed by mid-December 1948.
The basic disagreement amongst the members was how to balance the principle of personal
liberty and governmental stability. The provisions like justiceability of Fundamental Rights,
abolition of Untochability, protection against double jeopardy, Rights to freedom were

adopted with swiftness. It was also adopted that nothing in the name of individual liberty
could prevent the state from making provisions in the interests of social revolution.
In the realm of freedom of religion, Amrit Kaur raised concerns about free ‘practice’ of
religion as that had the potential to include ‘anti-social’ practices like sati, devdasi, purdah
and so on. This was supported by Ayyar, and subsequently the Advisory Committee laid
down that freedom of religion could not stop the state from making laws for social welfare.
Further, the term ‘equality before law’ was substituted by the equal protection of law on the
recommendation of Ayyar. There were disagreements on the issue of conscription. Mehta
and Kaur completely opposed conscription in any form, while Shah recommended
conscription for military service and also Ambedkar, Munshi and Ayyar held that a complete
prohibition on conscription might hamper national security. As a result it was accepted that
can impose compulsory service for public purposes and this would not be violation of forced
labour clause.
Furthermore, the Fundamental Rights Sub-Committee unanimously adopted universal

suffrage along with secret and periodic elections. With this understanding, we could move to
the next section which discusses the constitutional provisions related to Fundamental
Rights.
Constitutional Provisions
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Fundamental Rights have been enumerated in its entirety in Part III of the Constitution. At
its inception, Fundamental Rights were classified into seven groups, namely:

a) Right to equality (Articles 14-18)

b) Right to freedom (Articles 19-22)
c) Right against exploitation (Articles 23-24)
d) Right to freedom of religion (Articles 25-28)
e) Cultural and educational rights(Articles 29-30)
f) Right to property (Article 31, deleted)
g) Right to constitutional remedies (Article 32)
However, it should be noted that with the 44th Amendment Act in 1978, the Right to
property was removed from the set of Fundamental Rights, and was constituted as Article
300A in chapter IV of Part XII. As a result, presently we have six categories of Fundamental
Rights.
Right to equality, these are discussed from Article 14 to Article 18 of the Constitution.
Article 14, states that the state has to follow equality before the law along with equal
protection of law within the domain of Indian territory. Equality before law implies that
every person irrespective of his rank/status is equal before the law of the land, and can’t
claim for any kind of special status. In this way, the concept carries a negative connotation
in the sense that it implies absence of any special concessions on grounds of birth, caste,
creed and so on. Nevertheless, exception to this are allowed for the President or the
Governor of a state where no civil or criminal proceedings are allowed when they are in
office.
Equal protection of law is said to carry a positive connotation in the sense that it means
equal administration of law primarily in terms of privileges conferred and liabilities imposed
among equals and in equal circumstances. By extension this also signifies affirmative action
in terms of opportunities for the unequals. However, a reasonable basis is to be given for
the persons or collectives who are entitled for differential treatment by the state and thus
arbitrary discrimination by the state is not permissible. The basis of classification of persons
or collectives may be geographical, according to difference in time, difference in the nature
of occupation and so on.
In the words of Justice P.N. Bhagwati, Article 14 ‘shines like a beacon light towards the goal
of classless egalitarian socio-economic order’.

While Article 14 could be asserted by all i.e. citizens or foreigners within the territory of
India, Articles 15-18 are primarily meant for the citizens of India. Article 15 (1) enjoins that
the state shall not discriminate on the basis only of religion, race, caste, sex, place of birth
or any one of them against any citizen. The word ‘only’ opens the scope for differential
treatment. Clause (2) of Article 15, is levelled against both state action as well as
individuals. It enunciates that no citizen shall be subject to any disability, liability or
restriction on grounds only of religion, race, caste, sex, place of birth, with access to shops,
public restaurants, hotels and places of entertainment along with the use of places of public
resort maintained wholly or partly out of state funds like wells, tanks, bathing ghats, roads.
Subsequently, 15 (3) and 15 (4) (added by the first amendment in 1951) serve as
justification for differential treatment by the state, by empowering the state to make special
provisions for the advancement of women, children, socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes.
Value Addition: Case
In M.R.Balaji v. State of Mysore, 1963 and also in

N.Vasundhara v. State of Mysore, 1971 the
Supreme Court held that Article 15 (4) must be
carried within reasonable limits, and that the
special provisions by the state for socially and
educationally backward classes should not be
arbitrary. Further, regarding the issue to
determine who constitutes such classes, it was
held by the Supreme Court in K.S.Jaysree v. Kerela,
1976 and Chhotey Lal v. Uttar Pradesh, 1979 that
both caste and poverty are relevant to determine
backwardness but none of them alone would be
the determining criterion.
Nevertheless, 15 (4) also envisions that protective discrimination should be ‘reasonable and
consistent with the ultimate public interest’. Further, under Right to freedom, we have
Clauses (1) and (2) of Article 16 which ensures equality of opportunity in matters relating to
employment or appointment to any office under the state, along with this it has been
guaranteed that no citizen can be discriminated or rendered ineligible on grounds only of
religion, race, caste, sex, place of birth. This also includes non-discrimination in matters of
promotion, as employment includes promotion.

The exceptions to this rule of equality are given in Clause (3), (4) and (5 )of Article 16.
These clauses also show that equality in Clause (1) of the same Article is meant for equality
between members of the same class of employees, and not between members of
independent classes. In this context, Article 16 (3) held that the residence within the state
may be a proviso for appointment under any state or local authority. In this backdrop,
Public Employment Act, 1957 was passed for Andhra Pradesh, Himachal Pradesh, Tripura
and Manipur, but it expired in 1974. However, exception was made for the state of Andhra
Pradesh by inserting Article 371D, and the residence as a condition for public employment
continued.
Further, as a state of exception, Article 16 (4) held that reservation for any post could be
carried out by the state in favour of any backward class, if they are numerically or even
qualitatively underrepresented in any particular service. Finally, in the last exception, Article
16 (5) declares that the offices of a particular religious or denominated institution may be
reserved for members of that particular religious community.
In Devdasan v. Union of India, 1964 it was held

by the Supreme Court that reservations under
16(4) could not completely wipe out the
guarantee in 16(1) and thus reasonable
equality of opportunity should be maintained
for other non backward classes. Thus, more
than 50% reservation of posts was declared
unconstitutional as it hampered Article 16 (1).
Moving on, we have Article 17 under Right to Freedom which formed the base for the
enactment of Untochability (Offences) Act, 1955 and which was further modified in 1976
and was read as Protection of Civil Rights, 1955. Under this Article it has been declared that
‘untochability’ is abolished and its practice in any form like insulting a member of Scheduled
Caste, preaching or justifying untochability in the name of tradition of the caste system is
forbidden, as its practice is a punishable offence according to law under Article 35. Thus, no
individual could be refused admission to any public institution or worshipping in any place of
public worship or with regard to access to any place where public services are rendered.
The of
10 Institute constitutional validity ofUniversity
Lifelong Learning, the of Delhi
Untochability (Offences) Act, 1955
was challenged in Banamali Das v.
Panku Bhandari. But the Calcutta High
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that the Act was PlayStore
meant to abolish discriminatory
This is followed by Article 18, Clause (1) which disallows the state to confer titles on
individuals, therefore the abolition of titles. However military or academic distinctions may
be awarded, and they may be used as titles but not as an ‘appendage to one’s name’.
Further, Clause (2) of the Article prohibits an Indian citizen from accepting any foreign state
title and also under Clause (3) any foreigner holding office of profit under the Indian State
cannot accept any foreign state title without the permission of the President.
Value Addition: Interesting to Know
In 1954, decorations in the form of medals namely,

Bharat Ratna, Padma Vibhushan, Padma Bhushan
and Padma Shri were introduced. But they were
rendered as unconstitutional, as it was held that they
violated Article 18. These awards were also stopped
by the Janata regime in 1977, but was restored by
Indira Gandhi government, as the Supreme Court
held that these are not titles of nobility and they are
not used as prefixes or suffixes to the name of the
awardee.
Thus, the above discussed rights under Right to equality was more in terms of exercise of
negative liberty, now we will move to discuss Right to freedom which can be branded as
positive rights conferred by the Constitution to advance the principle of liberty as enshrined
in our Preamble. This has been listed under Article 19 (1), where every citizen has been
granted the right :
a) to freedom of speech and expression
b) to assemble peaceably and without arms
c) to form associations and unions
d) to move freely throughout the territory of India
e) to reside and settle in any part of India
f) to acquire, hold and dispose of property
g) to practice any profession, or to carry on any occupation, trade or business
It should be noted that Article 19 (1)(f) has been omitted by the 44 th Amendment Act,
1976, thus presently there are six categories of freedom under Article 19 (1).

The above mentioned freedoms were

held as the ‘natural rights inherent in the
status of a citizen’ by the Supreme Court
in State of W.Bengal v. Subodh Gopal
Bose, 1954
It should be noted that courts have held other freedoms in their decisions as well, which are
not under Article 19, but are necessary to uphold the democratic tenor of our polity. For
instance, freedom to live (Jagmohan Singh v.State of U.P., 1973); freedom of press (Brij
Bhushan v. State, 1965); the right to strike (Radhey Shyam Sharma v. P.M.G., Nagpur,
1965).
Before we delve into these freedoms, we need to understand that these are not absolute in
nature, as J.Das held in A.K. Gopalan v. State of Madras, 1950 ‘ social interest in individual
liberty may well have to be subordinated to other greater social interests’. In this regard,
Clauses 2-6 of Article 19 seeks to impose reasonable restrictions on the sub-clauses of
Article 19 (1), which we mentioned above, to protect sovereignty and integrity of India;
security of the State; friendly relations with foreign state; public order, decency or morality;
and also in relation to defamation and contempt of court. Thus, the individual liberties under
clauses of Article 19 (1) has to be balanced with social control for public welfare, which are
done by clauses 2 to 6 of Article 19. Though, it was held by the Supreme Court in Golak
Nath v. State of Punjab, 1967 that ‘reasonable restrictions’ will have spatial and temporal
dimensions, thus it would not be constant and change according to circumstances. Broadly,
the Supreme Court held that the reasonableness of a statutory provision must be decided in
relation to the Directive Principles of State Policy, prevailing social values and as a result
can’t be of an excessive nature.
Now, coming to the provisions entailed in Article 19 (1), first we have freedom of speech
and expression, where the term ‘expression’ carries a broad spectrum, which implies
freedom to express one’s as well as views of others, thus freedom of press is also included
within its ambit. It has been held that the State can’t impose laws or deliberately inflict any
specific tax on the Press to curtail its circulation or dissemination of information.

Value Addition
In Ramesh Thappar v. State of Madras, 1950 and

Brijbhushan v. State of Delhi, 1950, pre-censorship of the
Press was interpreted as a restriction on freedom of
speech and expression, as it was held that ‘public safety’
and ‘public order’ was not covered under ‘security of the
state’. However, with the First Amendment Act in 1951,
the word ‘public c order’ was inserted in Clause 2 of
Article 19 along with the term ‘reasonable’. Thus, in
Virendra v. State of Punjab, 1958 it was held that
censorship may be valid if subjected to reasonable
safeguards.
This is followed by Article 19 (1)(b) which is right to assemble peaceably and without arms,
this right is considered important as this serves as a means to inform and educate people
through meetings and demonstrations. But it has been seen that Section 144 of Criminal
Procedure Code is employed in the present context to curtail the provision of Article 19
(1)(b). Subsequently, Article 19 (1) (c) guarantees right to form associations which include
political parties, clubs, companies, trade unions or any body of persons. Within this, it has
also been held that nobody can be coerced to become a member of any union, and also that
right to strike would be controlled by apt industrial legislation, in that sense this right is not
exhaustive completely in the use of the term. Then, we have Article 19 (1)(d) and (e) which
entail the right to move freely, reside and settle in any part of India. With regard to this
right, along with the restrictions which we have discussed above, ‘the protection of the
interests of Scheduled Tribe’ is also included i.e. the right to movement and residence must
work in tandem with culture, language and customs of the tribal population. And lastly,
Article 19 (1)(g), holds that every Indian citizen has the right to practice any occupation,
profession or trade and also nobody could be denied the right to close any business if the
owner is willing to. Here also along with other general reasonable restrictions, it has been
held that in the interests of the general public, the state is authorized to prescribe
professional qualifications for any occupation, trade or business and also to keep a check
that business or trade is not being carried out in any hazardous goods like drugs, liquors,
trafficking of women and so on.

Furthermore, provisions for the rights of persons convicted of crimes have been made under
Article 20. Clause 1 of the Article says that the Legislature is not competent to make a
criminal law retrospective, so that the law in force is applicable for the criminal act being
carried out. This is said to be protection against retrospective criminal legislation or ex post
facto legislation. This excludes trials and civil liabilities.
The second Clause of Article 20 provides for immunity from double prosecution i.e. no
person could be prosecuted and punished for the same offence before a court of law or a
judicial tribunal.
Do you Know?
The same priniciple has been

explained by the term ‘double
jeopardy’ in the American law.
The third clause of Article 20 is meant for protection from being compelled to give evidence
against himself or in other words the protection against self-incrimination. It should be
noted that if the person wants then he can relinquish the privilege. This protection is meant
for criminal proceedings and does not bar the medical examination, specimen signature ,
thumb impression or production of document or material objects obtained at the time of
investigation.
Now, we will discuss Article 21 of the Constitution which provides that no person shall be
deprived of his life or personal liberty except ‘according to the procedure established by
law’. The concept of ‘procedure established by law’ is the adoption of the English concept of
personal liberty, where the legislature is supreme. This is to be differentiated from the ‘due
process’ entailed in the American Constitution, where any law depriving a person of his
liberty could be declared unconstitutional by the Court on reasonable grounds.
In Gopalan v. State of Madras, 1950 case , liberty implied only physical body of the
individual, however in 1978 decision in Maneka Gandhi v. union of India case, it was upheld
that right to live, is not only about physical existence, rather it also carries the connotation
of right to live with human dignity. Also it should be noted that until this decision in 1978
the validity of legislative law depriving personal liberty could not be challenged in a court of
law. But after this judgment it was held that the Court should attempt to expand the ambit

of Fundamental Rights. Further, in 1982 Pavement Dwellers’ case, right to life was made to
be inclusive of right to livelihood. In 1993 the right to livelihood within the scope of Article
21 was reiterated in D.K.Yadav v. JMA Industries Ltd.
In increasing the ambit of Article 21, the Supreme Court in Mohini Jain v. State of
Karnataka held that Right to Education was a fundamental right and that the state should
provide opportunities for education. Right to Education Act was passed in 2009, where the
state has the obligation to provide free and compulsory education to children between six to
fourteen years.
Value Addition
Various cases came up after 1978, which expanded

the realm of right to life and personal liberty. In Jolly
George Verghese v. Bank of Cochin, 1980 inability of
a poor person to pay debts amounting to
imprisonment was seen as deprivation of personal
liberty; in Mohini Jain v. State of Karnataka, 1992
included right to education within Article 21.
Moving ahead, we have Article 22, Clauses 1 and 2 which provide for safeguards against
arbitrary arrest and detention. The procedures which are laid down are that no person shall
be detained without being informed of the grounds of arrest, along with this no such person
shall be denied the right to consult a legal practitioner of his choice. Furthermore, he shall
be produced within twenty hours (excluding the time of journey from the place of arrest to
the court) before the nearest magistrate. However, these safeguards are not available for
an enemy or persons detained under preventive detention.
Value Addition
The concept of preventive detention means

detention without trial, which is carried out to
prevent a person from doing a crime. Thus, a person
is detained on the apprehension that he might do
something which hampers the public order, defence
or security of the country. This concept needs to be
distinguished from punitive detention, where a
person is punished and tried in the courts for an
illegal act committed by him.

Nevertheless, Clauses 4-7 of Article 22 contain protective provisions to prevent the misuse
of the power of preventive detention by the state. Thus, a person detained under preventive
detention cannot remain in custody for more than three months and if the period exceeds
then it has to be justified. The person detained may be informed of the grounds of his
detention, if those facts do not disrupt the public interest and also the opportunity of
representation against the order of detention is to be given at the earliest.
Now we will move from the constitutional provision of individual liberty to the constitutional
guarantee to prevent exploitation of the weaker sections of the society. In this context, we
have Article 23 which prohibits traffic in human beings and other forms of forced labour to
the extent that any such act is punishable according to the law. This is followed by Clause 2
of the Article 23 which entails that the state can impose compulsory recruitment for public
purposes. In the same real, we have Article 24 which contains provisions prohibiting
employment of children below the age of fourteen in factories, mines or any hazardous jobs.
Unlike Article 23, where the state can exercise exception for public purposes, Article 24 is
absolute in its nature which implies that there is no clause under which children could be
employed in hazardous jobs. Further, in M.C.Mehta v. State of Tamil Nadu, 1991, the
Supreme Court directed that positive measures should be taken for the welfare of such
children by meeting the terms of Child Labour (Prohibition and Protection) Act.
Subsequently, we have Articles 25-28 which declare right to freedom of religion in various
dimensions. These articles work in the framework of India as secular state under the
Constitution, which means that there is no ‘state religion’ in India i.e. the state neither
establish nor grant any special patronage for a particular religion.
Article 25 upholds that all persons (citizens and non-citizens) have the right to freedom of
conscience along with free profession, practice and propagation of religion which includes
both faith or belief and observance of rituals.
Value Addition
It should be noted that the Supreme Court in

Stainislaus v. State f M.P, 1977 held that the
word ‘propagate’ in Article 25 should not be
interpreted as right to ‘convert’ into other
religion by means of force, fraud, inducement or
allurement.

The freedom of religion is not only meant for individuals but also for religious groups or
denominations under Article 26. They have the right to establish institutions for religious
and charitable purposes; manage their own affairs in matters of religion as well as the right
to own and acquire movable/ immovable property in accordance with law. However, these
freedoms are not absolute in nature and are subject to interests of the public order,
morality, health and for social reform measures of the state. For instance, in Mohd. Hanif
Quareshi v. State of Bihar, 1958 it was held that cow slaughter on Bakrid could be
prohibited in the interest of public order, as this was held not to be an essential practice of
Islam.
Article 27 working within the ambit of equal respect for all religions says that no person
shall be compelled to pay any taxes for the promotion and maintenance of any particular
religion. Article 28 completely prohibits religious instructions in state-owned educational
institutions. Nevertheless, in other denominational institutions or educational institutions
recognized or receiving aid from the state , religious instructions could be imparted but it
cannot be imposed upon people attending that institution without their consent (consent
from the guardian in case of a minor).
Further, for the protection of minority communities on the basis of religion or language we
have Articles 29 and 30 which uphold their cultural and educational rights. Article 29
guarantees every section of the citizens having a distinct language, script or culture to
conserve the same. The state shall not inflict any culture upon the community. Article 30
holds that such communities have right to establish and administer educational institutions
of its choice which also implies freedom to choose medium of instruction in such institutions
(D.V.College Bhatinda v. State of Punjab, 1971) and the state shall not discriminate on the
ground that the institution is maintained by a minority community while granting aid to
educational institutions. 44th Amendment added Clause 1(A) to Article 30 which says full
compensation to be paid if the State acquires the property of any such institution.
Now we will discuss the Right to property i.e. Article 31, though it has been repealed from
the category of Fundamental Rights nevertheless we will attempt to see what remains of
that right. There were three-fold provisions in the Constitution when it was commenced, to
protect the private property. Article 31(1) held that the private property of a subject cannot

be taken away without proper legal authority or by any executive order. This meant that the
property can be appropriated if a valid law is passed is enacted by a competent Legislature.
This was followed by Article 31(2) that if the State wants to acquire the private property
then it must be meant for a ‘public purpose’, and also payment of an ‘amount’ must be
provided to the owner in lieu of acquisition.
Subsequently, by the First, the Fourth, the Seventeenth, the Twenty-fifth and the Forty-
second Amendment Acts, the obligation of the State to pay compensation for acquisition of
property for public purpose underwent major changes. If we see the net results of these
amendments, then firstly, in 1955 (Fourth Amendment) it was held that the adequacy of
compensation shall not be questioned in the court of law as the government held that the
programme of national planning would suffer if full market value was to be paid. Secondly,
in 1971 ( Twenty-fifth Amendment Act) the word ‘compensation’ was substituted by
‘amount’, but the Supreme Court held that this amount can’t be arbitrarily fixed by the
government. Further, the government introduced certain exceptions in Article 31 (2) and
many laws related to acquisition were placed in the Ninth Schedule in the backdrop of
facilitating agrarian reforms and to implement the Directive of socialistic distribution of
wealth and the means of production in Article 39(b) or 39(c). Subsequently, by the Forty-
fourth Amendment Act, 1978 the Right to property was eliminated from Part III i.e. the list
of Fundamental Rights by the Janata government. Thus, this right has been made a legal
right under Article 300 A in Part XII, Chapter IV of the Constitution.
This brings us to the last constitutional provision in the realm of Fundamental Rights, i.e
Article 32 which is the Right to constitutional remedies. The Judiciary has the power to
enforce implementation of the Fundamental Rights against the arbitrary action of the state
and in this context the Supreme Court and High Courts have the power to issue writs under
Article 32 and 226. It should be noted that under Article 32, the Supreme Court can issue
these writs only for the implementation of Fundamental Rights against any person or
Government within the territory of India, while under Article 226, the High Courts can issue
these writs for any kind of redressal arising from contravention of ordinary laws along with
the violation of Fundamental Rights only against person or authority within the territorial
jurisdiction of the High Court. Thus, Article 32 has been described as the ‘constitutional
remedy’ for the enforcement of Part III of the Constitution. In the words of B.R. Ambedkar
this provision has been described as the heart and soul of the Constitution.

Value Addition
In an effort to expand ‘right to be heard’, the Supreme

Court allowed exceptions to locus standi where it was held
that any person may move to the court in social or public
interest and also a ‘public interest litigation’ could be issued
where the public in general wants the enforcement of
some public duty.
There are five kinds of writs which the Supreme Court or the High Courts may issue namely
habeas corpus, mandamus, prohibition, certiorari and quo warranto. The literal meaning of
the term habeas corpus is ‘to have a body’ which has a Latin origin. This writ could be
issued to check the arbitrary acts not only of private individuals/officials but also against the
executive. The writ attempts to secure the body of the person detained by bringing the
person before the court, to know the reason of detention and to set free if there is no
justification for detention. However, it cannot issued for persons charged with criminal
offence.
Mandamus means command, thus the Supreme Court or the High Courts commands the
officers, government and other persons who are bound to do a public duty and which has
been refused to be performed by them. It could also be issued against inferior or other
judicial bodies who have refused to exercise their jurisdiction. Nonetheless, it could not be
issued against the President or the Governor of a state and also not against private
individual or body which is not in collusion with the state.
While mandamus commands activity, we have the writ of prohibition where the Supreme
Court or the High Courts command inactivity on the part of inferior court by usurping the
latter’s excessive jurisdiction i.e. which is not legally vested in them. Thus, this writ is
issued before the order is made , in the sense of prohibiting judicial tribunal or inferior
courts from making unconstitutional orders. Further, the writ of certiorari is issued against
Courts and tribunals exercising judicial powers to quash their orders which contravene the
rules of justice.
Last but not the least, we have the writ of quo warranto which asks the question ‘with what
authority or warrant’. It enquires into the legality of a claim, asserted by a person who
holds a public office which has been created by the Constitution or a statute, and to cast out
the claim if found illegal.

Hitherto, we have discussed the constitutional provisions meant for the protection of
Fundamental Rights. Now we will try to see the actual working of these rights in the society.
Have these rights enabled to realize the ideals of the Constitution specifically in terms of
liberty and equality? Before we move on with this question, here we will briefly discuss the
tension between the Parliament and Judiciary in the realm of Fundamental Rights.
Working of the Parliament and the Judiciary in the context of Fundamental Rights
After independence numerous laws like Zamindari abolition laws were passed favouring the
oppressed sections of the society. These were being carried under the welfare aspect of the
newly formed government. However, such legislations were challenged by the landlords as
violating their fundamental rights.
They appealed to the Supreme Court on the basis of Article 13 (2), which prohibits the state
from making laws violating Fundamental Rights. But the Court in Shankari Prasad v. Union
of India held that Article 368 enables the Parliament to amend the Constitution without any
exception. Also the First Amendment Act in 1951 inserted Ninth Schedule and Articles 31A
and 31B. Article 31A held that laws meant for acquisition of estates cannot be declared null
on the view that they violate Articles 14 and 19. Under Article 31B it was stipulated that
legislations under Ninth Schedule cannot be invalidated on the grounds that they violated
Fundamental Rights.
However, this position of the Judiciary was reversed in the Golak Nath case in 1967 in which
six of the eleven judges bench upheld that the Parliament under Article 368 cannot take
away the rights entailed under Article 13(2), and hence the absolute power of amendment
of the Parliament was challenged. This tension between the Parliament and the Judiciary
was resolved in 1973 with the Keshavananda Bharti case. The judgement announced the
‘basic structure doctrine’ of the Constitution, which meant that the Parliament can amend
the Constitution but it cannot alter the ‘basic structure’ of the Constitution. Though the
ambit of basic structure is not clear, but generally it includes republican and democratic
form of government, secularism, federalism, dignity of the individual.
A Critical Analysis
We need to comprehend that there is a gap between the Rights as they exist in the
Constitution and its practical application. At times it appears that in one hand we are getting
the rights, while through various conditions imposed on the exercise of these rights, they

are taken away by the state from the other hand. It has been held that these rights are not
For instance, the freedom guaranteed under Article 19 are subject to reasonable limits and
restrictions so that these rights to not hamper the security of the state, public order,
decency, morality, sovereignty and integrity of the country. But the problem is that these
terms are not defined, as in there no parameter to decide the ‘resonableness’ of these
terms. Such a lack of clarity could be used by the state to suppress freedom of expression
as happened in the case of writers like Taslima Nasreen, M F Hussain and even cartoonist
Aseem Trivedi. The state might use grounds like sovereignty and integrity of the country to
fulfill its political ends and to protect its vote bank politics.
Further, the Fundamental Rights could be suspended under Proclamation of Emergency by

the President under Article 352. Thus, the Legislature could make laws even if they contrive
the rights under Article 19 and also no individual could move to the Court for the
enforcement of Fundamental Rights except those under Article 20 and 21. Such kind of
provision was seen in its worst form, when large Scale violations of human rights took place
during the Emergency proclaimed by the Indira Gandhi regime.
Moving further, we also need to see Article 22 is limited by its clauses 4-7 which provide for
‘preventive detention’. These clauses empower the Legislature to make laws which could
detain a person just on the basis of ‘suspicion’ that he might commit a wrongful act
affecting the security of the state, the maintenance of public order or the maintenance of
supplies and services essential to the community. Various laws were passed in this context
in different time periods like Preventive Detention Act, 1950; MISA, 1971(repealed);
COFEPOSA, 1974; TADA 1985(lapsed); POTA, 2002(repealed); UAPA, 2008. Though these
laws were meant to have temporal and geographical limits but they have been renewed
giving arbitrary reasons. Many people have been detained under these laws. So these laws
could be seen as a big blot on the democratic polity of our country. However, we are not
saying that they are completely not needed, but efforts must be made to their application
less non-arbitrary, so that they could not be misused.
We also need to account that have these rights helped in reducing inequalities along caste,
class and gender lines. Untochability was made an offence, but still our minds are colonized
by the caste factor, still women and dalits are not allowed to enter places of worship in few
places. We talk about equality in employment and other public places, but what about the
patriarchal structure of the society which debars women from exercising their very basic
rights, and when try to assert their rights for instance their right to property then they are

branded as ‘bad’ women who are seen as violating family structures and values.
Furthermore, though Right to food Security was passed in 2013, but still many people go
hungry. Likewise, programmes like MNAREGA were meant to promote Right to work, but we
can see a huge gap in the implementation of these.
Nevertheless, these instances by no means imply that we have not moved on the path of
equality and liberty. Understanding of Fundamental rights have paved the way for various
rights like Right to work, Right to food security and so on. Here we could also mention
Scheduled Tribes and Other Traditional Forest Dwellers Act, 2006. This law has been
progressive as it empowers the forest dwellers and the tribals with effective land rights,
who were seen as ‘encroachers’ hitherto by the state.
So the crux of the discussion is that we need to constantly expand the boundaries of the
Fundamental Rights and make them more effective tools for the achievement of an
egalitarian society, and this requires a critical evaluation of the existing provisions.
Conclusion
The Constitution has been given the adjective of ‘living’, which connotes that it is a
document which responds to the changing circumstances. It signifies that our Constitution is
dynamic in nature and not constant, this also conveys its democratic aspect. Thus, with the
new challenges, ideas and practices of the contemporary times, scope has been made to
amend the Constitution.
It should be noted that the constitutional provisions have scope to expand its meaning in
order to make the exercise of Fundamental Rights more substantial. Therefore, two
processes must go simultaneously. First, the existing provisions must be implemented i.e.
the gap between theory (as given in the Constitution) and its actual practice needs to be
lessened. And second, the interpretation of each constitutional provision must be widened
with the changing circumstances.
Glossary
Locus Standi: The right or capacity to bring an action or to appear in the court
Magna Carta: It is also known as the Great Charter of the Liberties of England. This was the
first document to limit the powers of the King of England in the thirteenth century.
Procedure established by law: It means that a law that is duly enacted by legislature or the
concerned body is valid if it has followed the correct procedure.

Writ: a form of written command in the name of a court or legal authority
Exercises
1. Discuss the ambit of Fundamental Rights. Are they absolute in nature?
2. What are the provisions within Article 19. Do you think they have been violated in the
present context?
3. Choose the correct answer for the following questions:
a) Which of the following is not a source of Indian Constitution

i) Irish Constitution
ii) Italian Constitution
iii) British Constitution
iv) US Constitution
b) What is the origin of the term ‘habeas corpus’

i) Greek
ii) Latin
iii) Roman
iv) French
c) How many Fundamental Rights do we have now

i) 6
ii) 7
iii) 8
iv) 9
4. Write brief answers for the following:
a) Discuss the ways in which Indian Constitution differs from the US Constitution?
b) What are the constitutional provisions to ensure Right to Equality under the Constitution
of India?
c) What are the limitations on the exercise of Fundamental Rights?
d) What are the writs existing under Right to Constitutional Remedies?

References
Austin, G, The Indian Constitution, Cornerstone of a Nation, New Delhi: Oxford University
Press, 2013.
Basu, D D, Introduction to the Constitution of India, New Delhi: Wadhwa and Company Law
Publishers, 2004.
Chaube, S C, The Making and Working of Indian Constitution, New Delhi: National Book
Trust, 2010.
Kashyap, S, Our Constitution, An Introduction to India’s Constitution and Constitutional

Law, New Delhi: National Book Trust, 1994.
Ray, A K, ‘Human Rights Movement in India’, in Economic and Political Weekly, Volume 38,
Number 32, 9 August 2003.

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 Constituent Assembly Debates

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History of Fundamental Rights in India

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The Indian Constitution can be seen as a balance between parliamentary sovereignty of

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In some Constitutions, the sanctity of Fundamental Rights is

Constituent Assembly Debates

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Furthermore, the Fundamental Rights Sub-Committee unanimously adopted universal

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a) Right to equality (Articles 14-18)

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Value Addition: Case

In M.R.Balaji v. State of Mysore, 1963 and also in

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Value Addition: Case

In Devdasan v. Union of India, 1964 it was held

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In 1954, decorations in the form of medals namely,

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Value Addition: Case

The above mentioned freedoms were

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In Ramesh Thappar v. State of Madras, 1950 and

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The same priniciple has been

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Various cases came up after 1978, which expanded

The concept of preventive detention means

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It should be noted that the Supreme Court in

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In an effort to expand ‘right to be heard’, the Supreme

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Further, the Fundamental Rights could be suspended under Proclamation of Emergency by