Fundamental Rights 

The concept of fundamental rights originated with the idea that all individuals possess certain inalienable rights. The Fundamental Rights (Articles 12-35) protected in Part III of the Indian Constitution represent the values cherished by the people of India. They are calculated to protect the dignity of the individual and to create the conditions in which an individual may pursue the life he desires to the fullest extent.[1] The inclusion of fundamental rights in the Constitution serves as a guarantee to Indian citizens that their inalienable rights would be protected from government action. Part III also serves as a reminder to the Government in power to respect citizens’ rights and limits the State’s range of activity.[2]

Historical Background

The development of constitutional rights in India was inspired by historical documents such as England’s Bill of Rights, the United States Bill of Rights and France’s Declaration of the Rights of Man. India’s fundamental rights had their origins in the Indian independence movement. The demand for civil rights for Indians began in the 19th  century and focused on achieving liberty and bringing an end to colonial discrimination. The British passed a number of acts to pacify the demands of civil rights activists, but none put an end to the pervasive discrimination present in British India. By the time India had achieved independence, the nation’s founders determined that the Constitution must include a chapter that would protect citizens’ fundamental rights. These rights now constitute Part III of the Indian Constitution.

The Constituent Assembly faced difficulties in choosing which rights to make fundamental and in determining how best to make them inviolable. The framers considered both liberal ideals (which argued for the protection of life, liberty and property) and socialist democratic ideals (which emphasized the importance of a welfare state) in choosing which rights to make fundamental. B. N. Rao, a member of the Advisory Committee, recommended that two lists of Fundamental Rights be prepared, one that could be executed through the courts and another that would incorporate those social principles which, though non-justiciable, were to be considered fundamental in the governance of the country. Thus, the rights fundamental to the people were broken into two parts in the Indian Constitution: Fundamental Rights, constituting Part III, and the Directive Principles of State Policy, constituting Part IV. The former were to be enforced by the courts and the latter were non-enforceable. The founders had intended both parts to be enacted equally but over the last 70 years of independence, the Fundamental Rights have come to overshadow the Directive Principles.


Right to Equality (Articles 14-18):

Articles 14 to 18 broadly cover the right to equality for both Indian citizens and foreign nationals. 

  1. Article14: Equality before the law

Under Article 14, the State is prevented from denying any person within the territory of India equality before the law or equal protection under the law.

The concept of equality is a positive concept. A person is treated unequally if that person is treated worse than others who are “similarly situated”.[3] The courts can command the State to give equal treatment to all similarly situated persons. This ensures that the people under the same circumstances are given equal treatment accordingly. Article 14 cannot be invoked for perpetuating irregularities or illegalities.[4]

  1. Article 15: Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth

Section 15 (2) states that no citizen shall be subject to any disability, liability, restriction or condition, on the grounds of religion, race, caste, sex or place of birth with regard to access to public places, especially those wholly or partially funded by the government. Sections 15 (3), (4) and (5) lay down protective discrimination. Under these sections, the Constitution grants the government the power to make special provisions for the development and advancement of women, children, socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 15 (5) grants the government the power to make special provisions for the same groups in regards to their admission to educational institutions (both public and private).

  1. Article 16: Equality of opportunity in matters of public employment:

Article 16 ensures that all citizens are given equal opportunity regarding employment or appointment to any office under the State. This article also provides for protective discrimination by allowing the State to make reservations for appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State.

It is an accepted legal position that the right of eligible employees to be considered for promotions is virtually a part of the right guaranteed under Article 16.[5]

  1. Article 17: Abolition of untouchability:

The age-old practice of untouchability was permanently abolished by Article 17. Any person who practices untouchability in any form shall be punished in accordance with the law.


Right to Freedom (Article 19-22):

  1. Article 19: Protection of certain rights regarding freedom of speech, etc.:

Article 19 states that all the citizens shall have the right –

  • to freedom of speech and expression
  • to assemble peaceably and without arms
  • to form associations or unions
  • to move freely throughout the territory
  • to reside and settle in any part of the territory
  • to practise any profession, or to carry on any occupation, trade or business

The right to freedom of speech and expression is not absolute. Freedom of speech may be restricted by the government in order to maintain the security of the State, friendly relations with foreign States, public order, decency or morality, and the sovereignty and integrity of India. Speech which is in contempt of court, defamation, and incitement to offence is also not protected.

The Constitution does not make any explicit reference to freedom of the press. However, freedom of expression has been considered to embody the freedom of the press.[6]

  1. Article 20: Protection in respect of conviction of offences:

Article 20 provides that a person shall be convicted of an offence only if the action was considered illegal at the time it was committed. A person shall not receive a more severe punishment than what might have been inflicted under the law in force at the time of the commission of the offence.

Article 20 also prohibits Double Jeopardy, meaning no person shall be prosecuted and punished for the same offence more than once. Section (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself.

  1. Article 21: Right to life and personal liberty:

The right to life guaranteed under Article 21 is the most fundamental of all rights. As the right to life is a primary right that every person should be entitled to, the ambit of Article 21 is far-reaching. In Maneka Gandhi v. Union of India[7], the Supreme Court gave a new dimension to Article 21 by holding that the right to life includes the right to live with human dignity. The Supreme Court also held that the right to livelihood is borne out of the right to life.

The right to personal liberty includes the right to privacy as well. Article 21 also charges the State to provide free and compulsory education to all children, regardless of economic, social and cultural background, aged six to fourteen.[8]

Freedom from Exploitation (Articles 23-24):

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

Article 23 prohibits the trafficking of persons and forced labour. Human trafficking is the recruitment or transportation of persons by some means of coercion in order to exploit their labour.[9] Clause (2) of Article 23 permits the State to impose compulsory services for public purposes. Thus, compulsory enlistment for state service, typically into the armed forces is not unconstitutional. But in imposing such service, the State must not discriminate on the grounds of religion, race, caste, or class.

  1. Article 24: Prohibition of employment of children in factories, etc.:

This article prohibits the employment of any child, below the age of fourteen years, in any factory or mine. It also prevents the involvement of any child below the age of fourteen years in any other hazardous employment.


Freedom of Religion (Article 25-28):

  1. Article 25: Freedom of conscience and free profession, practice and propagation of religion:

Under Article 25, every person is equally entitled to freedom of conscience and the right to profess, practise and propagate any religion freely. This article subjects such freedom to public order, morality and health. The practice of religion in violation of public order, morality or health will be considered as an offence. Article 25 is also not absolute, and the State has the power to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.

  1. Article 26: Freedom to manage religious affairs:

This article provides that every religious denomination (or group) or any section thereof shall have the right to –

  • establish and maintain institutions for religious and charitable purposes;
  • manage its own affairs in matters of religion;
  • own and acquire movable and immovable property; and
  • administer such property in accordance with the law.

The rights conferred under Article 26 are also subject to public order, morality and health.[10]

Rights to Constitutional Remedies (Articles 32-35):

This section of the Constitution provides citizens the right to move to the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. The Supreme Court, under Section 32(2), has the power to issue directions or orders in order to enforce said rights.

[1] Maneka Gandhi v. Union of India, AIR 1978, SC 597 at 619

[2] Dr. M.P. Sharma, Government of the Indian Republic, 1965, P.41

[3] Glanrock Estate (P) Ltd. v. State of Tamil Nadu, 2010

[4] Usha Mehta v. Government of Andhra Pradesh, 2012

[5] Union of India v. Hemraj Singh Chauhan, AIR 2010 SC 1682

[6] Romesh Thapar v. State of Madras, 1950

[7] 1978 AIR 746, 1978 SCR(2) 621

[8] Tamil Nadu v. K. Shyam Sunder AIR 2011 SC 3470:(2011)8 SCC 737:JT 2011(9) SC 166:(2011) 8 SCALE 474

[9] Palermo Convention

[10] Dr. Subramanian Swamy v. State of Tamil Nadu, AIR 2015 SC 460