Law and You > Constitutional Law > Fundamental Rights

People in democratic countries enjoy certain rights, which are protected by judicial system of the country concerned. Their violation, even by the State, is not allowed by the courts.  Such rights are called “Fundamental Rights”. No democracy can function in the absence of basic rights such as freedom of speech and expression. Constitution of India enshrines ‘Fundamental Rights’.  Various social, religious, economic and political problems in our country make Fundamental Rights important. Fundamental Rights are enumerated in Part III from Article 14 to 32 of the Constitution. There are some rights which are available to the citizens of India only while some are available to all persons – citizens and non-citizens. Fundamental rights guaranteed by Articles 15, 16, 19, 29 and 30 are available to the citizens only.

The doctrine of natural rights passed into the realm of practical reality for the first time in the form of Magna Carta when King John was made to acknowledge that there were certain rights of the subject which could not be violated even by a sovereign in whom all power was vested as per Social Contract Theory. Further, the theory of natural rights entered into the realm of constitutional realism with two revolutionary documents American Declaration of Independence and the French Declaration of Rights of Man.

The American Declaration of Independence drafted by Jefferson is clear and unequivocal on this point when he stated that “all men are created equal, and are endowed by their Creator with certain unalienable Rights among these are Life, Liberty and the pursuit of happiness.

The French Declaration of the Rights of Man and of the Citizen is influenced by the doctrine of natural rights, it promulgates a set of individual rights and collective rights which are defined as universal: they are supposed to be valid in all times and places, pertaining to human nature itself.

During the British rule in India, human rights were violated by the rulers on a very wide scale. Therefore, the framers of the Constitution had a very positive attitude towards the Fundamental Rights. Indian society is fragmented into many religious, cultural and linguistic groups, and it was necessary to declare Fundamental Rights to give to the people a sense of security and confidence. The Constitution, not only, secures the Fundamental Rights, but also, provides a speedy and effective remedy for their enforcement with the establishment of independent Judiciary.

Fundamental Rights in the Constitution of India

Part III of the Constitution is said to contain the Bill of Rights available to the people of India. This chapter of the Constitution has been described as `Magna Carta’ of India. The inclusion of a Chapter of Fundamental Rights in the Constitution of India is in accordance with the trend of modern democratic thoughts. Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government.

Fundamental rights of the Indian constitution are the basic rights provided by the constitution of India to its citizens. These rights are essential for the development of the personality of every individual. They are also needed to preserve human dignity. Fundamental Rights are termed “fundamental” because of their crucial importance to individual liberty, equality, and justice similarly they are essential for attainment of the full intellectual, moral and spiritual status as individual.

Why These Rights Are Called “Fundamental”?

Fundamental Rights are termed “fundamental” because of their crucial importance to individual liberty, equality, and justice. The key reasons for their being called “fundamental” are:

• Inherent to Human Existence: These rights are considered basic for the free and dignified existence of individuals in a democratic society. They safeguard human freedom, equality, and dignity and are essential for personal growth and social welfare.
• Constitutional Protection: Fundamental Rights are guaranteed and protected by the Constitution itself. This constitutional status ensures that these rights cannot be taken away arbitrarily by the state. Any law that violates Fundamental Rights can be declared null and void by the courts.
• Universal Application: Fundamental Rights are available to all citizens irrespective of race, religion, caste, gender, or place of birth. They provide a universal framework for safeguarding individuals’ rights in India.
• Justiciability: Unlike other rights, Fundamental Rights are enforceable by law, meaning that individuals can approach the courts if their rights are violated. The judiciary plays a crucial role in upholding these rights and ensuring that the state does not infringe upon them unjustly.
• Limitations on State Power: Fundamental Rights act as a check on the power of the state. They prevent arbitrary or authoritarian actions by the government, ensuring that citizens’ rights and liberties are not compromised.
• Supremacy over Ordinary Laws: Fundamental Rights have a higher status than ordinary laws. If any law passed by the legislature violates a Fundamental Right, it can be struck down by the judiciary, as seen in landmark cases like Kesavananda Bharati and Minerva Mills.

Objectives of Fundamental Rights:

1. To ensure the fullest physical, mental and moral development of every citizen. They include those basic freedoms and conditions which alone can make life worth living.
2. To generate a feeling of security amongst the minorities in the country.
3. To establish the framework of ‘democratic legitimacy’ for the rule of the majority.
4. To provide standards of conduct, citizenship, justice, and fair play.
5. To serve as a check on the government. In our Constitution,
   

Importance of Fundamental Rights:

• Protect Individual Freedom: They secure civil liberties, ensuring that every citizen has the freedom to express themselves, move freely, and live without fear of discrimination or exploitation.
• Safeguard against State Tyranny: By imposing limits on the state’s powers, Fundamental Rights protect individuals from arbitrary or unlawful government actions.
• Promote Social Justice: They guarantee equality and prevent exploitation, promoting a more just and equitable society.
• Maintain National Integrity: By protecting religious, cultural, and educational rights, they contribute to the unity and integrity of the nation, allowing diversity to thrive.
• Democratic Values: They uphold the basic principles of democracy, ensuring that every citizen has a say in the political and social life of the nation.

Fundamental rights are justiciable:

Justiciable means that if these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or High Courts for the protection of his/her Fundamental Rights. A right without remedy is a meaningless concept. Articles 32 and 226 read with Article 13 make fundamental rights enforceable. Constitution of India does not permit the legislature and the executive to curb these rights either by law or by an executive order. The Supreme Court or the High Courts can set aside any law that is found to be infringing or abridging the Fundamental Rights. Under the Articles the 32 and 226 read with Article 13, the Supreme Court and the High Court are empowered to issue appropriate order, direction and writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of the fundamental rights guaranteed by Part III of the Constitution.

Constitutional Remedies Against Violation of Fundamental Rights:

Article 32 deals with the right to ‘Constitutional Remedies.  This provision makes the Supreme Court a guardian of the Constitution and a great protector of the Fundamental Rights.  The Indian Constitution empowers the Supreme Court to issue writs for enforcement of these rights conferred by Part III of the Indian Constitution under Article 32. Similar remedy is available under Article 226, under which, a petitioner can approach to respective High Court for restitution of fundamental rights.

Types of Fundamental Rights:

Fundamental Rights mentioned under Article 14-35 of the Constitution of India can be categorized as follows: 

• Right to Equality (Article 14-18): Right to equality including equality before the law, the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment.
• Right to Freedom (Article 19-22):  Right to freedom of speech and expression, assembly, association or union, movement, residence, and right to practice any profession or Occupation.   Articles 20 and 21 cannot be suspended during the National Emergency.   It also recognized under the United Nations-Universal Declaration of Human Rights, and the International Covenant for Civil and Political Rights.
• Right against Exploitation (Article 23-24):  Right against exploitation prohibiting all forms of forced labour, child labour and traffic in human beings.
• Right to Freedom of Religion (Article 25-28):  Right to freedom of conscience and free profession, practise, and propagation of religion.
• Cultural and Educational Rights (Article 29-30):  Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
• Right to Constitutional Remedies (Article 32-35):  Right to Constitutional remedies for enforcement of Fundamental Rights.   

Characteristics of Fundamental Rights:

They are the integral part of the Constitution: 

They have been made an integral part of the Constitution and hence cannot be taken away by ordinary legislation. Any law passed by any legislature in the country would be declared null and void if it is derogatory to the rights guaranteed by the Constitution (Article 13).

They are Universal: 

These Rights enshrined in our Constitution are bestowed upon each and every citizen of the Republic without any consideration of religion, caste, creed, colour or sex. 

They have Constitutional superiority: 

The Fundamental Rights of the citizens are superior to ordinary laws and the Directive Principals of State when the President withdraws it.

They are comprehensive and detailed:  

The rights enumerated in the Part III of the Constitution are very elaborate. Each Article has been described with its scope and limitations.

They are qualified i.e. they are not absolute: 

Except the right against untouchability, all other fundamental rights of the people are not absolute. They are qualified with limitations and reasonable restrictions in the collective interest of the society.

In description of each Article the scope of each right and its limitations are given. It was important for protecting public health, public order, morality and security of India. Some exceptions are also provided to Fundamental Rights through their non-applicability to members of security and law and order related forces, during martial law and, for certain laws necessary for socio-economic reforms.

The Indian Constitution itself seeks to curb fundamental rights. It is something different from those provisions in the US and Australian Constitutions. Those constitution give power to the Courts to invent limitations like police power, eminent domain, scope of grave and imminent danger.

They are enforceable or justiciable:

Justiciable means that if these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or High Courts for the protection of his/her Fundamental Rights. A right without remedy is a meaningless concept. Articles 32 and 226 read with Article 13 make fundamental rights enforceable. The Constitution not only grants but also guarantees these rights. There are elaborate instruments to protect these rights, such as Right to Constitutional remedy, Public Interest Litigation, Human Rights Commissions.

They are amendable: 

Fundamental Rights are not sacrosanct and permanent. Parliament has the power to amend any part of the Constitution including Fundamental Rights without changing the basic structure of the Constitution. The Parliament has, in practice, exercised this power on several occasions.

They can be suspended: 

The Constitution provides for suspension of all or any of the Fundamental Rights during an emergency. However, such a suspension automatically ends when the emergency ceases or when the President withdraws it.

There are Special Rights for the minorities: 

The Fundamental Rights guarantee some special rights to the minorities of various kinds. This is apart from the guarantee of the secular nature of the Constitution. Cultural and educational rights have been granted to them. It abolishes untouchability and makes it a crime. It has also granted special protections to women, children and the weaker sections of society.

They lack of Social and Economic Rights: 

The Constitution guarantees only civil rights and freedoms. Rights like Rights to work, Right to Health, and Right to Social Security have not been included in the Fundamental Rights.

They are against State only:

Barring a few exceptions, the fundamental rights guarantees the individuals against the State action. (Articles 15(2)(a)(b) and Article 17). They are not meant to protect persons against the conduct of private persons. Against the actions of the private individuals a person can seek remedy under the ordinary law of the land.

Right to Property not a Fundamental Right: 

Right to property which is a feature of particularly liberal democracies is not guaranteed by the Constitution of India. Actually, the original Constitution as in 1949 granted to the citizens the fundamental right to property. However, because of the hindrances posed by this rights in the way of implementation of some socio-economic reforms (abolition of Zamindari), right to property was deleted from the list of Fundamental Rights. It was made a legal right under Article 300A. Thus, now right to property is a legal right of the people.

Distinguishing between Fundamental Rights and Other Rights

Fundamental Rights and Other Rights (such as legal or statutory rights) are both essential in a legal system, but they differ in their nature, source, enforcement, and scope.

Fundamental Rights	Other Rights
Fundamental Rights are explicitly guaranteed by the Constitution of a country. In India, they are enshrined in Part III of the Constitution (Articles 12 to 35), and they form a part of the supreme law of the land.	Other Rights are rights derived from ordinary laws, such as statutes or legislation passed by the government, or from customs or precedents. They do not have constitutional status and can be amended or repealed by the legislature.
Fundamental Rights enjoy constitutional protection, meaning they cannot be easily altered, abridged, or abolished by the government. If a law or government action violates a Fundamental Right, it can be challenged in a court of law, and the law can be struck down as unconstitutional.	Other Rights do not enjoy constitutional protection. They can be amended or repealed by the legislature through the normal process of law-making. Violations of such rights may not lead to striking down the law itself, though remedies can be sought in regular courts.
Fundamental Rights are justiciable, meaning that individuals can directly approach the courts for their enforcement. In India, under Article 32 of the Constitution, the Supreme Court can be approached for the enforcement of Fundamental Rights, making it the “protector and guarantor” of these rights. High Courts can also be approached under Article 226.	Other Rights may or may not be enforceable by the courts in the same direct manner. Legal or statutory rights are typically enforced through the normal judicial process but do not allow for a direct constitutional remedy like Fundamental Rights do.
Fundamental Rights are of broad and universal application, applying to all citizens or, in some cases, even non-citizens (like Article 21, which applies to “persons” rather than just citizens). They cover essential freedoms and liberties like right to life, freedom of speech, equality before the law, and protection from exploitation.	Other Rights may be limited in scope and are often context-specific. For example, statutory rights may pertain to specific groups of people, specific circumstances, or specific legal frameworks. Examples include rights under consumer protection laws, property laws, or labour laws.
Fundamental Rights are protected from arbitrary amendment. They can only be altered by constitutional amendment, and even then, the basic structure doctrine (as established in Kesavananda Bharati v. State of Kerala, 1973) prevents the destruction of the essential features of these rights.	Other Rights can be changed, amended, or repealed by the ordinary legislative process. Parliament or state legislatures can modify these rights without any constitutional limitations, as long as the changes do not violate the Fundamental Rights.
Since Fundamental Rights are enshrined in the Constitution, they have a higher legal status than other laws. Any ordinary law that violates Fundamental Rights can be declared unconstitutional by the judiciary.	Other Rights are subordinate to Fundamental Rights. If there is a conflict between a statutory right and a Fundamental Right, the Fundamental Right prevails.
The objective of Fundamental Rights is to protect the individual freedoms and dignity of citizens, ensuring equality, liberty, and justice for all. They aim to prevent the state from infringing on basic human rights and serve as a check on government power.	Other Rights are often created for specific legal frameworks or to address particular social or economic issues. For example, rights under the Right to Information Act or Consumer Protection Act aim to empower citizens in particular fields but are not as comprehensive as Fundamental Rights.
Examples: Right to Equality (Article 14): Equality before the law and equal protection of the law, Right to Freedom of Speech and Expression (Article 19), Right to Life and Personal Liberty (Article 21, Right Against Exploitation (Article 23).	Examples: Right to Vote, Right to Information, Right to Property, Consumer Rights, Right to Pension

Can Fundamental Rights be Waived?

Fundamental Rights are designed to protect the individual from arbitrary state actions, as well as to safeguard the democratic fabric of society. Therefore, individuals are not allowed to waive or renounce these rights, as doing so would undermine the very purpose of their constitutional protection.

Key Points on the Non-Waivability of Fundamental Rights:

• Public Interest and State’s Duty: Fundamental Rights are designed not just for the benefit of individuals but also for the preservation of public interest and the democratic framework of the country. Even if an individual wishes to relinquish these rights, the state has a duty to uphold them to maintain the constitutional order.
• Constitutional Mandate: The Constitution imposes these rights upon the state and the individual, making them mandatory. Since these rights are conferred by the Constitution, an individual cannot waive what the Constitution itself mandates for their protection.
• Non-Derogable Nature: Many Fundamental Rights, particularly the Right to Life (Article 21) and the Right to Equality (Article 14), are so fundamental that they cannot be derogated or given up under any circumstances, even during emergencies (Article 359).
• Exceptions and Limited Scope: While individuals cannot waive their rights entirely, some Fundamental Rights have limitations or restrictions based on reasonable limitations in the interest of public order, morality, and national security. For example, Article 19, which guarantees the right to freedom of speech, can be subject to restrictions by law. However, these restrictions are imposed by law, not voluntarily waived by the individual.

In Basheshar Nath v. The Commissioner of Income Tax, AIR 1959 SC 149 case, the Supreme Court ruled that an individual cannot waive their Fundamental Rights. The court held that the waiver of Fundamental Rights would not be legally valid, as these rights are meant to protect not just the individual but also the larger democratic framework of the nation. Therefore, any agreement or contract to waive Fundamental Rights would be unconstitutional and unenforceable.

Same concept is applied by Courts in Yousuf Ali v. M.S. Kabekar (1982), Beheram Khurshid Pesikaka v. State of Bombay, and Olga Tellis (1986) cases.

Case Laws:

In Romesh Thappar v. the State of Madras, AIR 1950 SC 124 case the Supreme Court observed that Article 32 provides a ‘guaranteed’ remedy for the enforcement of fundamental rights.

In Gopalan v. The State of Madras, AIR 1950 SC 27 case, Kania C.J. pointed out that “Fundamental rights are express constitutional provisions limiting legislative power and controlling temporary will of majority by a permanent and paramount law settled by deliberate wisdom of a nation”.

In P.D. Samdasani v. Central Bank of India, AIR 1952 SC 59 case, the Court opined that the Fundamental Rights are against the might of the State and are required by an individual as constitutional protection.

In State of West Bengal v. Subodh Gopal, (AIR 1954 SC 92) case, Patanjali Shashtri, C.J., of the Supreme Court observed that “The whole object of Part III of the Constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State.”

In Bohman Behram v. State of Bombay (1955) 1 SCR 613 case, Mahajan J. observed that “The fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into question in considering individual rights. They have been put there as a matter of public policy, and doctrine of waiver has no applications of law which has been embodied as a matter of constitutional policy.”

In Golaknath v. State of Punjab, AIR 1967 SC 1643 case, the Apex Court held that law made by the parliament shall not be such that infringes and takes away the fundamental rights of the citizen which are provided by the Constitution of India.  According to the judgement, no act of the parliament can be considered a law if it violated the basic structure of the constitution.

In Kesavananda Bharati v. the State of Kerala, AIR 1973 SC 1461 case, the Supreme Court gave parliament power to amend any part of the Constitution of India.  However, such amendment shall not take away the fundamental rights of the citizen which are provided by the Constitution of India.

In Minerva Mills v. Union of India, AIR 1980 SC 1789 case, the Supreme Court held that social welfare laws should not infringe fundamental rights.

In Skill lotto Solutions Pvt. Ltd v. Union of India, 3 December, 2020 case, the Supreme Court held that Article 32 is an important and integral part of the basic structure of the Constitution.  Article 32 is meant to ensure observance of rule of law.  It provides for enforcement of the fundamental rights, which is the most potent weapon.

Conclusion:

Enshrined in Part-III of the Indian Constitution, Fundamental Rights are the basic human rights guaranteed by the Constitution of India. Fundamental rights are those rights that are important for the moral and intellectual development of all people. These are required for the all-around development of individuals, hence called fundamental rights. The six fundamental rights include the Right to Equality, Right to freedom, Right against exploitation, Right to freedom of Religion, Cultural and Educational Rights and Right to constitutional Remedies. Originally Right to property (Article 31) was also included in the lists. However, by the 44th Constitutional Amendment Act, 1978, it was deleted from the list of Fundamental Rights and made a legal right under Article 300A in Part XII of the constitution.

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