Fundamental Rights

The third and the most important part contains the Fundamental Rights. Fundamental Rights are granted to citizens under Articles 12 to 35 of the Constitution. Some of the provisions of the Fundamental Rights are of the nature of prohibitions and place Constitutional limitations on the authority of the state.

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  The object of the Fundamental Rights, Dr. Ambedkar said, is two fold. First that every citizen must be in a position to claim those rights. Secondly they must be binding upon every authority. They must be binding not only on Central Government but on the State Governments, districts, local bodies, municipalities, even Village Panchayats and Taluk Boards. But the Bill of Rights in the United States imposes limitations on the National Government alone.

Article 13 (2) of our Constitution says The state shall not make any law which takes away or abridges the rights conferred by this part. Any law made in contravention; is void. It has been much debated whether the word law includes Constitutional Amendment or not. The present opinion is that law does not include Constitutional Amendment. And according to the judgement given in the Keshavanand Bharathi’s case in April 1973, this is made clear that the Parliament can amend the fundamental Rights. So it implies that the word law does not include Constitutional amendment. Thus the Supreme court shifted back to its original position in the Gopalan case of 1950, that Parliament is omnipotent. The Goalknath case judgment has been overruled. It is apt here to discuss what is Golaknath case. The Supreme Court by a historic 6-5 ruling on February 27, 1967 reversing its earlier decision declared that Parliament had no power to abridge or take away Fundamental Rights guaranteed under the Constitution. The majority view was expressed in two separate judgments- one by the then Chief Justice Mr. K. Subba Rao for himself and for Justices S. C. Shah, J. M. Shelat and Vaidyalingam and the other by Mr. Justice Hidayathullah. The judges who gave dissenting judgment were Wanchoo, Bhargawat, Mitter and Ramasami. The Government’s demand to abridge the Fundamental Rights was dubbed as “too extravagant”. When such a contingency arises, the Parliament by exercising its residuary powers, might call the Constituent Assembly to frame a new Constitution or to change it radically. The article 368 which deals with the Amendment to our Constitution gives only the procedure and not the power to amend or abridge the Fundamental Rights, how can it give power to a Constituent Assembly which is to be created by the Parliament? A coin has always two sides.

Specific Fundamental Rights

Right to Equality (Art. 13-18)
It guarantees equality to all persons before the law, thrashes out discrimination on grounds of religion, race, caste, sex or place of birth between citizens, grants equality of opportunity in the matter of public employment and abolishes untouchability and titles. Minorities may establish their own schools and Government cannot deny grants on the grounds of race, religion or language. Exemptions: (First Amendment) The State may make special provisions to give preference to the socially and economically backward classes of citizens or for the Scheduled Castes and Tribes. The Parliament may confine employment under any state or local authority to residents. The state may also provide for the reservation of appointments or posts for members of backward classes which in the opinion of the state are not adequately represented in the services under the state. Offices connected with religious denominations may be reserved only to the adherents of that denomination.

Right to Freedom (Art 19-22)
These Articles deal with the right to freedom. Article 19 guarantees seven fundamental rights which are known as seven freedom; namely (a) freedom of speech and expression, (b) freedom of assembly; (c) freedom of association, (d) freedom of movement, (e) freedom of residence and settlement, (f) freedom of profession, occupation, business or trade, (g) freedom of possession. Exemption: The reservations restricting this right are in the interests of the security of the state, friendly relations with foreign states, public order, decency, morality or relating to contempt of court, defamation or incitement to an offence. Freedom of assembly and of association is subject to restrictions in the interests of the public order. The freedom of movement is also restricted in the interest of the public and of any scheduled tribes. In times of emergency, every citizen cannot claim access to places considered to be of military or strategic importance. The freedom of movement may be restricted to the place where an epidemic spread. Any person can be forbidden from entering into any part of the country for a particular period or can be detained on the sufficient grounds in the interest of public order. The right of carrying any trade or profession is subject to reasonable restrictions.

Right Against Exploitation (Art. 23-24)
These articles prohibit the traffic in human beings and beggary and similar forms of forced labour. But regarding services, the state shall not make any discrimination on grounds of religion, race, caste or class. Nobody below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

Right to Freedom of Religion (Art. 25-28)
All persons are equally entitled to freedom of conscience and possess the right to profess freely, practice and propagate religion, subject to public order, morality and health. No one can be compelled to pay tax for propagation or maintenance of any religion. No school or college wholly maintained out of government revenues can impart religious instructions.

Cultural and Educational Rights (Art. 29 & 30)
These articles guarantee to every minority or section of the citizens residing in the territory of India or any part thereof to have the right of having a distinct language script of culture of its own and of conserving the same. All minorities are given freedom to establish educational institutions of their choice. The state shall not discriminate in granting aid to educational institutions on the ground that it is under the management of a minority whether based on religion or language.

Right to Constitutional Remedies (rt. 32-35)
These articles guarantee every person to move the Supreme Court for the enforcement of the fundamental rights. But while a proclamation of emergency is in operation, Fundamental Rights related to seven freedoms stand automatically suspended. The President, by an order may suspend the right to move the courts to enforce the Fundamental Rights. But such an order must be laid before the Parliament in accordance with the related provisions of the Constitution. Article 32 (1) allows moving the Supreme Court to issue directions, or orders or writs in the nature of Habeas Corpur, Mandamus, Certiorari, Probation and Quo warrant. This right was described by Dr. B. R. Ambedkar as “The Heart and Soul” of the constitution.

Right to property (Art. 31)
According to this article no person shall be deprived of his property saved by authority of law. Further no property shall be compulsorily acquired or requisitioned save for public purpose and save by authority of law without paying adequate compensation. But the word compensation has been now replaced by the word ‘amount’ (25the Amendment). Further it was provided that if the Parliament or a State Legislature makes a law with the declaration that it is going to give effect to the ‘Directive Principles of State Policy’ it cannot be brought under ‘Judicial Review’. But this part has been struck down by the Supreme Court. Now the Right to property, contained in part III – Fundamental Right – of the Constitution, has been taken away as a fundamental right and made a legal right under Art. 300A by the 44th Constitution Amendment Act, 1978, with effect from June 20, 1979.