Previse 2024: Fundamental Rights

Previse 2024: Fundamental Rights

GS2 | Polity

Table of contents

The Indian Constitution enshrines fundamental rights as the foundation of a just and equitable society. These rights, guaranteed in Part III of the Constitution from Articles 12 to 35, empower individuals and safeguard them against arbitrary actions of the state.

This section delves into the six fundamental rights, equipping you to analyze their significance, implications, and potential limitations. By mastering these fundamental rights, you'll be well on your way to securing a strong foundation for your UPSC journey.

Article 14

Equality before Law and Equal Protection of Laws

  • It mandates that the State shall not deny to any person Equality before the Law or the Equal Protection of the Laws within the territory of India.
  • All the citizens, foreigners as well as legal persons such as companies are covere.
  • Equality before Law-
    • This concept has British origin which means the absence of any special privileges in favor of any person, equal subjection of all persons to the ordinary law of the land and no person is above the law.
    • This is a negative concept.
  • Equal Protection of Laws-
    • This concept was taken from the American Constitution. 
    • It means equality of treatment under equal circumstances, similar application of the same laws to all persons who are similarly situated and like should be treated alike without any discrimination.
  • Rule of Law-
    • This concept was propounded by the British jurist A V Dicey and has the following elements-
      • Equality before law i.e. equal subjection of all citizens to the laws of the land.
      • Absence of arbitrary power i.e. no man can be punished except for a breach of law.
      • The primacy of the rights of the individual i.e. constitution is the result of the rights of the individual as defined and enforced by the courts of law, rather than the constitution being the source of the individual rights.
  • In Indian jurisprudence, only the 1st and 2nd elements of the ‘Rule of Law’ are applicable, and not the 3rd one because in India, the constitution is the source of the individual rights.
  • The rule of equality before the law has certain exceptions like-
    • Article 14.
    • Article 361.
    • Article 361-A.
    • Article 105 and Article 194.
    • Article 31-C read with article 39 (b) and (c) and Article 14.
    • Immunity to foreign sovereigns, ambassadors, and diplomats from criminal and civil proceedings.

Article 15

Prohibition of Discrimination on Certain Grounds 

  • The state shall not discriminate against any citizen on grounds ONLY of religion, race, caste, sex, or place of birth. This prohibits discrimination only by the state.
  • No citizen shall be subjected to any disability, liability, restriction, or condition on grounds ONLY of religion, race, case, sex, or place of birth w.r.t. access to public places. This prohibits discrimination both by the state and private individuals.
  • The term ‘only’ is in bold because discrimination on grounds other than those mentioned in the provisions is not prohibited.
  • There are certain exceptions like-
    • The state can enact special provisions for the benefit of women and children, such as reserving seats in local bodies or providing free education for children.
    • The state can enact special measures for the advancement of socially and educationally backward classes, as well as scheduled castes and scheduled tribes such as seat reservations or fee concessions in public educational institutions.
    • The state can enact special measures for the advancement of economically weaker sections of society. 

Article 19

  • Article 19 of the Indian Constitution guarantees certain freedoms to all citizens of India. It encompasses six fundamental rights:
    • Right to freedom of speech and expression includes the following as per the Supreme Court-
      • Right to propagate one’s own as well as others’ views.
      • Freedom of silence, press, commercial advertisements
      • Right against tapping of telephonic conversation, bandh and pre-censorship on a newspaper.
      • Right to telecast.
      • Right to know about government activities.
      • Right to demonstration or picketing but not right to strike.
      • But there are restrictions on basis of -
        • Sovereignty, Security  and integrity of India
        • Friendly relations with foreign states
        • Public order, decency, or morality
        • Contempt of court and defamation, and
        • Incitement to an offense.
  • Right to assemble peacefully and without arms,
    • It guarantees every citizen the right to assemble peacefully (without arms), including the right to hold public meetings, demonstrations, and take-out processions.
    • This freedom can be exercised only on public land, and not on private land.
    • The assembly must be peaceful and unarmed and it does not include the right to strike.
  • Right to form associations, unions, or co-operative societies,
    • The right to obtain recognition of an association formed is not a fundamental right.
    • As held by the Supreme Court, the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out.
  • Right to move freely throughout the territory of India,
    • The freedom of movement has two dimensions:
    • Internal – One can move freely between the states or within a state. Article 19 protects only this dimension. 
    • External – right to move out of the country and right to come back to the country. This dimension is dealt with by Article 21 
    • Restrictions include freedom of movement of prostitutes on the grounds of public health and public morals and in tribal areas for the protection of the interests of any scheduled tribe.
  • Right to reside and settle in any part of the territory of India,
    • It includes the right to temporarily stay in any part of the country, i.e. staying at any place temporarily OR
    • The right to settle in any part of the country i.e. setting up a home or domicile at any place permanently
  • Right to practice any profession or to carry on any occupation, trade, or business.
    • This right does not include the right to carry on a profession, business, trade, or occupation that is immoral or dangerous like trafficking in children or dealing with harmful drugs are not allowed under this right.
    • For this, the state can prescribe a technical or professional qualification as a necessity for practicing any profession or carrying on any occupation, trade, or business; and
    • The state can itself carry on any trade, business, industry, or service without taking into consideration either complete or partial exclusion of citizens in the form of complete or partial monopoly.
  • Article 19 had originally seven rights but the right to acquire, hold, and dispose of property was deleted by the 44th Amendment Act of 1978.
  • These six rights are protected only against the actions of the state and not private individuals.
  • These rights are available only to the citizens and shareholders of a company. They are not available to foreigners or legal entities like corporations, companies, etc.

Article 20

Protection in Respect of Conviction for Offenses 

  • This right protects against arbitrary and excessive punishment of an accused person, whether a citizen, a foreigner, or a legal person like a company or a corporation, etc.
  • It prohibits incrimination under an ex-post-facto law i.e. that imposes penalties retrospectively or which increases the penalties. 
    • This provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial that too only on criminal laws, not on civil laws or tax laws. 
    • Protection under this provision cannot be claimed in case of preventive detention.
  • No double jeopardy i.e no person shall be prosecuted and punished for the same offense more than once.
    • This protection is available only in proceedings before a court of law or a tribunal and not in case of departmental or administrative authorities.
    • No person accused of any offense shall be compelled to be a witness against himself thus avoiding self-incrimination.
    • This protection extends only to criminal proceedings and not to civil proceedings or other proceedings which are not of criminal nature.

Article 21

Protection of Life and Personal Liberty

  • This right is available to both citizens and non-citizens and it says that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
  • Through various judgments of the Supreme Court, there has been evolution of the scope of rights included under Article 21. 
    • Gopalan Case, 1950: Protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. There was a demarcation between ‘procedure established by law’ used in Article 21 from the expression ‘due process of law’.
    • Menaka Case, 1978: The Supreme Court took a wider interpretation of Article 21, overruling its judgment in the Gopalan Case. The right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair, and just.
    • Protection under Article 21 is available not only against arbitrary executive action but also against arbitrary legislative action.
    • Scope has expanded since and it includes-
      • Right to live with human dignity,
      • Right to a decent environment, including pollution-free water and air,
      • Right to livelihood, privacy, shelter, health, free legal aid and speedy trial.
      • Right to free education up to 14 years of age,
      • Right against solitary confinement, handcuffing, hazardous industries and inhuman treatment.

Article 22

Protection Against Arrest and Detention

  • Punitive Detention involves punishment for an offense committed by a person after trial and conviction in a court.
  • Preventive Detention involves detention of a person without trial and conviction with the main aim to prevent someone from committing an offense in the near future.
  • First part deals with the cases of ordinary law and provides the following rights to a detained person. 
    • Right to be informed of the grounds of arrest and be produced before a magistrate within 24 hours, excluding the journey time.
    • Right to be released after 24 hours unless the magistrate authorizes further detention.
    • Right to consult and be defended by a legal practitioner.
    • These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
  • Second part grants protection to persons who are arrested or detained under a preventive detention law and includes-
    • Grounds of detention should be communicated but facts which are against public interest can be hidden.
    • Detention of a person cannot exceed 3 months unless an advisory board (judges of a High Court) reports sufficient cause for extended detention.
    • This safeguard is available to both citizens as well as aliens.
  • It authorizes Parliament to prescribe circumstances and the classes of cases in which a person can be detained for more than 3 months without obtaining the opinion of an advisory board.
  • The Constitution has divided the legislative power w.r.t. preventive detention between Parliament and State Legislatures.

Article 25

Freedom of conscience and the right to freely profess, practice and propagate religion.

  • Freedom of Conscience means inner freedom to mold relations with God in whatever way desired.
  • Right to Profess means declaration of one’s religious beliefs and faith openly and freely.
  • Right to Practice means performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
  • Right to Propagate means transmission and dissemination of one’s religious beliefs to others. It does not include a right to convert another person to one’s own religion. 
  • Available to all persons, citizens as well as non-citizens.
  • Wearing and carrying of kirpans is to be included in the profession of the Sikh religion.
  • Hindus include Sikhs, Jains and Buddhists.
  • Article 25 guarantees the rights of individuals, while Article 26 guarantees the rights of religious denominations or their sections, thus protecting the collective freedom of religion. 
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