Indian Polity · Topic 5 of 25
Justiciable fundamental rights guaranteed under Part III
The Basics
A right is a claim a person can make against the State. It is not a favour granted by the State. Every right has a corresponding duty. This is why rights and duties in India are correlative.
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Some rights given by the Constitution are not placed in Part III, so they are not Fundamental Rights. They are called constitutional rights, legal rights or non-fundamental rights. They exist in other parts of the Constitution. They protect important freedoms, but they are enforced differently from Fundamental Rights.
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Article 13 is the constitutional switch that gives teeth to Fundamental Rights. It simply says that any law inconsistent with or taking away a Fundamental Right shall be void, to the extent of that inconsistency.
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Article 14 says the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This right applies to every "person", not just citizens. It covers foreigners, and also legal persons such as companies, statutory corporations and registered societies.
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Article 15 stops the State from treating a citizen unfairly only because of religion, race, caste, sex or place of birth. In one part, it also binds private persons. It applies the general idea of equality from Article 14 directly to these specific grounds.
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Article 16 guarantees equality of opportunity for all citizens in matters of employment or appointment under the State. No citizen can be excluded from public employment only on grounds of religion, race, caste, sex, descent, place of birth or residence.
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Reservation means the State sets aside a share of seats in education and jobs for groups that have been historically kept out of opportunity. Article 16(4) permits the State to reserve appointments for any backward class of citizens that is, in its opinion, not adequately represented in government services. This is not an exception to equality; it is read as fulfilling the promise of real equality of opportunity for groups who start from a position of disadvantage.
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Untouchability was a deep social practice that treated certain castes as impure. It denied them access to temples, wells, schools and public spaces because of birth. Article 17 of the Constitution abolishes untouchability and forbids its practice in any form. Enforcing any disability arising from untouchability is made an offence punishable by law.
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Article 18 abolishes titles. It stops the state and citizens from creating artificial social ranks through titles. This protects equal status for all citizens.
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Liberty, in the sense the Constitution protects, is not simply the absence of restraint. It is also not the freedom to do whatever one likes. It is best understood as the opportunity to develop oneself fully. This positive idea of freedom lets a person grow physically, mentally and morally.
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Freedom of speech and expression means every citizen can express views, opinions, beliefs and convictions freely, by word of mouth, writing, printing, pictures or any other medium.
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Freedom of the press is not a separately named right in the Constitution. It is understood as part of the citizen's freedom of speech and expression under Article 19(1)(a). A newspaper or channel is simply a citizen's means of expressing and circulating views to a wider audience.
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Freedom of residence, under Article 19(1)(e), lets every citizen reside and settle in any part of the country.
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Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. In simple words, the government cannot kill or imprison anyone unless a valid law allows it and a proper procedure is followed. This right belongs to every person in India, citizen or not.
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Article 21A says the State shall provide free and compulsory education to all children aged six to fourteen years. The manner is decided by the State. This makes only elementary education a Fundamental Right. Higher or professional education is not covered.
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Article 22 protects people who are arrested or detained. The Constitution recognises two kinds of detention: punitive detention, which punishes someone for an offence after trial and conviction, and preventive detention, which locks a person up without trial, merely on the suspicion that they might commit an offence in future. Preventive detention is not punishment for the past; it is a precaution against the future.
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The Right against Exploitation protects vulnerable people from being treated as goods or forced to work without real consent or fair pay. In simple words, it says no one can be bought, sold or made to work for nothing.
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Article 24 protects children from being employed in dangerous work at a young age. It bans employing any child below fourteen years in a factory, mine, or other hazardous activity. This includes work such as construction or railway work. It does not stop children from doing harmless or innocent work.
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Article 25 gives every person, not just citizens, the freedom of conscience and the right to freely profess, practise and propagate religion. This is the first and most important article in the group called the Right to Freedom of Religion.
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Cultural and Educational Rights protect two things. First, any group's right to keep its own language, script and culture. Second, minorities' right to run their own schools and colleges.
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Article 32 gives every citizen the right to move the Supreme Court directly if any Fundamental Right is violated. This right is itself a Fundamental Right. So the right to seek enforcement is guaranteed alongside the rights it enforces.
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A writ is a formal written order issued by a court to enforce a right or correct a wrong. There are five kinds: habeas corpus, mandamus, prohibition, certiorari, and quo warranto. The Constitution lets the Supreme Court issue these writs under Article 32. It lets every High Court issue them under Article 226.
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Mandamus literally means "we command". It is a written order issued by a court directing a public official, public body, corporation, inferior court, tribunal, or government to perform a public duty that it has failed or refused to perform. The writ is issued when a court finds that an office holder is not doing a legal duty, and this failure is violating the right of an individual.
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Prohibition and Certiorari are the two writs that keep lower courts and tribunals from overstepping their jurisdiction. Both are issued by a higher court, such as the Supreme Court or a High Court. Both are issued against a lower court or tribunal, not against administrative officers or the government directly.
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Quo warranto literally means 'by what authority or warrant'. It is a writ issued by a court to question the legal right of a person to hold a public office. In simple terms, it stops someone from occupying a government post they are not legally entitled to.
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The Right to Property is a clear example of a right downgraded over time. It started as a Fundamental Right. It is now only a legal right, available to any person, citizen or not.
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The Ninth Schedule is a list of laws attached to the Constitution that are given special protection from being challenged in court for violating Fundamental Rights. A law placed in this list cannot be struck down merely because it contravenes rights under Part III, because Article 31B says so.
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Articles 31A, 31B and 31C are exceptions written into the Constitution. They protect certain laws from being struck down for violating Fundamental Rights, especially Article 14 (equality) and Article 19 (six freedoms).
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