Fundamental Rights And Writs Of India

Introduction About Fundamental Rights:

• Fundamental rights are placed into the constitution from Articles 12 to 35 of Article III of the Constitution.
• We are inspired by the USA to enshrine fundamental rights in the Constitution of India.
• Fundamental rights are guaranteed to all individuals in the country through supreme and high courts without any discrimination.
• Part III of the Constitution has been dubbed the “Indian Magna Carta.”
• In fact, the Constitution enshrines seven fundamental rights, They are listed below,

1. Right to equality [Article 14 to 18],
2. Right to freedom [Article 19 to 22],
3. Right against exploitation [Article 23 to 24],
4. Right to freedom of religion [article 25 to 28],
5. Cultural and educational rights [Article 29 to 30],
6. Right to property [Article 31],
7. Right to constitutional remedies [Article 32]

• But later in subsequent years, the right to property [Article 31] was removed from the list of fundamental rights in 1978 by the 44th Amendment.

Right to Equality [Article 14 to 18]:

Article 14 – Equal protection of laws and Equality before law:

• According to Article 14, the State should not deny anyone equality before the law or equal protection of the laws within the territory of India.
• With regard to Article 14, no one can be punished except for violating the law.
• The law should maintain equal loyalty among all rich or poor citizens.
• The Supreme Court held that Article 14 is a fundamental feature of the Constitution, which means that it cannot be destroyed even by amendment.

Exceptions:

• The President of India and the Governor of the States enjoy the following immunity under Article 361.
• They shall not be liable to any court for the execution and performance of their official powers and duties.
• No criminal proceedings will be instituted during their tenure and no arrest or imprisonment will be imposed by any court during their tenure.
• No civil proceedings will be instituted against them during their tenure until the expiry of two months after the notice is sent to them.
• No person shall be liable for any civil or criminal proceedings in any court of law relating to a newspaper or radio or television publication under Article 361A.
• The member of Parliament shall not be liable to any trial in any Court in respect of the vote cast in Parliament under Article 105.
• No member of the State Legislature is not liable for any trial in any court of law relating to a vote cast in the Legislature under Article 105.
• The Supreme Court held that Article 31C was an exception to Article 14 and that it would where article 31 C comes in article 14 goes out.
• Foreign rulers; Ambassadors, diplomats, UNO and its agencies have an exception from criminal and civil proceedings.

Article 15 – Prohibition of Discrimination:

• Article 15 gives that the State will not discriminate against any citizen on the basis of religion, race, caste, sex or place of birth.

Exceptions:

• The State is allowed to make any special provision for women, children,  socially-educationally backward classes, and SC-ST classes.

Article 16 – Equality  in public employment:

• Article 16 gives equivalent opportunities for all individuals in the country with respect to employment in any office of the central or State.

Exceptions:

• The State may make reservations for any appointments and posts of Central or State departments in favor of any backward classes.

Article 17 – Abolition of Untouchability:

• Article 17 eliminates untouchability and prohibits its practice in any form, and it is a punishable offence under the law.
• In 1976, the untouchability offences act 1955 has been thoroughly amended and renamed the protection of the Civil Rights Act 1955.
• A person convicted of a crime of untouchability is disqualified from being elected to Parliament or the State Legislature.
• Anyone found guilty of untouchability faces up to six months in prison or a fine of up to 500 or both.

Article 18 – Abolition of Titles:

• Article 18 prohibits the state from awarding any title to any citizen or foreigner except for military or educational distinction, and It also prohibits an Indian citizen from accepting any title from any foreign state.
• Article 18 prohibits certain titles mentioned below, especially Maharaja, Raj Bahadur, Roy Bahadur, Rai Sahib, Dewan Bahadur, etc.
• With regard to national awards, the Supreme Court upheld in 1996, that Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri awards are not the same as titles. However, it also ruled that the names of award recipients should not be used as suffixes or prefixes, otherwise they would lose the awards.

Right to Freedom [Article 19 to 22]:

Article 19 – Protection of Six Rights:

• Article 19 guarantees all citizens the following six rights.

1. The right to freedom of speech and expression.
2. The right to assemble peacefully without arms.
3. The right to form associations or unions or cooperatives.
4. The right to free movement throughout the territory of India.
5. The right to live and settle in any part of the territory of India.
6. The right to practice any profession or to pursue any profession, business or trade.

• These rights are protected only against government actions and not from private individuals.

Article 20 – Protection in a Conviction for Offences:

• Article 20 grants protection to the accused citizen or a foreigner or company from arbitrary and excessive punishment.
• Article 20 contains 3 provisions mentioned below

1. No offence shall be committed against any person except for a violation of the law in force and no fine shall be imposed in excess of that prescribed by law.
2. No person shall be prosecuted and punished more than once for the same offence.
3. A person who has committed any crime should not be compelled to be a witness against himself.

Article 21 – Protection of life and Personal Liberty:

• Article 21 declares that no person shall lose his life or personal liberty except in accordance with the procedure established by law.
• This right is available to both citizens and non-citizens.

Article 21A – Right to Education:

• Article 21A states that the state must provide free compulsory education for all children between the ages of 6 and 14.
• This provision was added by the 86th Constitutional Amendment Act 2002 to achieve “Education For All”.

Article 22 – Protection against arrest and detention:

• Persons arrested or detained are guaranteed protection under Article 22.
• This article provides protections for these arrests, both punitive and preventive.

1. Punitive Detention – Punishing a person for any crime he has committed after trial and sentencing in court, This safeguard is not available to enemy aliens.
2. Preventive Detention – This means, the detention of a person without trial and conviction by a court, this safeguard is available to both citizens as well as aliens.

Right Against Exploitation [Article 23 to 24]:

Article 23 – Prohibition of traffic in forced labour and human beings:

• Article 23 prohibits human trafficking, begging and forced labor.
• This right is available to both citizens and non-citizens and It protects individuals against both state and private parts.

Exception: 

• It allows states to impose mandatory service for public purposes, for example, military services or social services at no cost.

Article 24 – Prohibiting the employment of children in companies and factories :

• Article 24 bans the employment of minors under the age of 14 in any dangerous activity, such as a factory, mine, or construction site, but it does permit employment in any safe and innocent activity.
• In 1996, the Supreme Court ordered the establishment of the Child Labor Rehabilitation Welfare Fund, in which the employer who committed an offence was required to pay a fine of Rs 20,000 for each child employed.
• The Commission for the Protection of Child Rights Act, 2005 was established as the National and State Commission for the Protection of the Rights of the Child.
• In 2006, the government banned the employment of children under the age of 14 as domestic servants or labourers in hostels, restaurants, tea shops and resorts.

Right to Freedom of Religion [Article 25 to 28]:

Article 25 – Freedom of conscience and a free profession, the practice and propagation of religion :

• According to Article 25, all individuals have the right to freedom of conscience and the right to freedom of religion, expression and practice of religion.
• Article 25 also contains an explanation of the wearing and carrying of kirpan‌s in the profession of Sikhism.

Article 26 – Freedom to manage religious affairs:

• According to Article 26, every religious denomination or any section within it has the following rights-

1. The rights to establish and maintain institutions for religious and charitable purposes.
2. The right to conduct one’s own affairs in religious matters.
3. The right to own and acquire movable and immovable property, and the right to maintain such property by law.

Article 27 – Freedom from Taxation for Promotion of a Religion:

• Article 27 stipulates that no person shall be forced to pay any taxes for the propaganda or organization of any particular religion or religious denomination.
• Article 27 prohibits the state from spending public money collected through taxes on the propagation or maintenance of any particular religion.
• This provision only prohibits the imposition of taxes and no fees.

Article 28 – Freedom to attend religious instructions  and religious educational institutions:

According to Article 28, religious instruction shall not be provided in any educational institution which is entirely funded by the State.

Cultural and Educational Rights [Article 29 to 30]:

Article 29 – Protection of language, script and culture of minorities:

• According to Article 29, any section of the citizens living in any part of India has its own language, script or culture.
• No citizen shall be refused entrance to any state-run educational institution or receive state-funded help solely on the basis of religion, race, caste, or language.
• Admission to any educational institution will not be denied through state funding on the basis of religion, race, caste or language.
• Article 29 protects religious minorities as well as linguistic minorities.

Article 30 – Rights of minorities to establish and administer educational institutions:

• Article 30 grants the following rights to religious or linguistic minorities.

1. All minorities have the right to establish and maintain educational institutions of their own decision.
2. Mandatory seizure of any property of minority educational institutions does not limit or terminate their guaranteed rights.
3. The state does not discriminate against any educational institution run by minorities.

Right to Constitutional Remedies [Article 32]:

• Article 32 provides for the right of relief to the exercise of the fundamental rights of the affected citizens to resort to the Supreme Court for the enforcement of fundamental rights.
• Dr. BR Ambedkar referred to Article 32 of the Constitution as the most important Article and he said “An article without remedies, the constitution would be nullity”. it is the soul of the constitution.
• Article 32 is a fundamental aspect of the Constitution, according to the Supreme Court.
• The Supreme Court has the power to issue orders or directives or writs for the enforcement of any fundamental rights.
• Parliament can empower any other court to issue all types of orders, directives and writs.

Exception:

• The right to move the supreme court shall be suspended only during a national emergency under article 359.

Type of Writs:

• The Supreme Court under Article 32 and the High Court under 226 may issue the following writs. These writs are taken from Britain and are called “prerogative writs”.
• Habeas corpus:

1. It means “to have the body of”
2. An order issued by the court to submit the body of the person who was detained by another person.
3. This writ can be issued against public authorities and private individuals.

• Mandamus:

1. It means ” we command”
2. It is issued by the court to public officials duties that he has failed to perform.
3. It can be issued against any government agency, corporation, the lower court, tribunal or government.
4. It is not issued against private persons, duty is not mandatory, state governors, chief justice of the high court.

• Prohibition:

1. It means “To Forbid”
2. It is issued by the Higher Court to the lower court or tribunal.
3. It is issued only to quasi-judicial authorities.

• Certiorari:

1. It means “To be certified” or “To be informed”
2. It is issued by a higher court to a lower court or tribunal either to transfer the pending case or quash the subsequent order in one case.
3. In 1991, the Supreme Court ruled that certiorari could also be issued against administrative officers.
4. It is also not available against legislative bodies and private individuals.

• Quo-Warranto:

1. It means “By what authority or warrant”.
2. It is issued by a court of law to a person’s public office to inquire into the legality of a person’s claim.
3. It will not be issued in the case of a ministerial office.

Related Frequently Asked Questions and Answers:

1Q. Briefly describe and list the fundamental rights in the Constitution of India?

Answer:

• Fundamental rights are placed into the constitution from Articles 12 to 35 of Article III of the Constitution.
• We are inspired by the USA to enshrine fundamental rights in the Constitution of India.
• Part III of the Constitution has been dubbed the “Indian Magna Carta.”
• the Constitution enshrines 6 fundamental rights, Which are listed below

1. Right to equality [Article 14 to 18],
2. Right to freedom [Article 19 to 22],
3. Right against exploitation [Article 23 to 24],
4. Right to freedom of religion [article 25 to 28],
5. Cultural and educational rights [Article 29 to 30],
6. Right to constitutional remedies [Article 32].

2Q. What are the 6 rights guaranteed by Article 19?

Answer:

• Article 19 guarantees all citizens the following six rights.

1. The right to freedom of speech and expression.
2. The right to assemble peacefully without arms.
3. The right to form organizations such as groups, unions, and cooperatives.
4. The right to free movement throughout the territory of India.
5. The right to live and settle in any part of the territory of India.
6. The right to practice any profession or to pursue any profession, business, or trade.

3Q. Briefly explain Article 21A?

Answer: Article 21A states that the state must provide free compulsory education for all children between the ages of 6 and 14. and This provision was added by the 86th Constitutional Amendment Act 2002 to achieve “Education For All”.

4Q. What articles are available under the Cultural and Educational Fundamental Rights?

Answer:

• Article 29 – Protection of language, script, and culture of minorities.
• Article 30 – Rights of minorities to establish and administer educational institutions.

5Q. Explain Article 32 and list the types of writs available in the Constitution of India?

Answer:

• Article 32 provides for the right of relief to the exercise of the fundamental rights of the affected citizens to resort to the Supreme Court for the enforcement of fundamental rights.
• Article 32 is a basic characteristic of the Constitution, according to the Supreme Court.
• The Supreme Court has the power to issue orders or directives or writs for the enforcement of any fundamental rights.
• Parliament can empower any other court to issue all types of orders, directives, and writs.

Type of Writs:

1. Habeas corpus – “to have the body of”.
2. Mandamus – ” we command”.
3. Prohibition – “To Forbid”.
4. Certiorari – “To be certified” or “To be informed”.
5. Quo-Warranto – “By what authority or warrant”.