Gajendra Singh Godara
Sep 19, 2025
20
mins read
Philosophical & Foreign Inspirations: The concept of Fundamental Rights in India drew inspiration from historic documents and ideas.
The Magna Carta (1215) first recognized the principle of rights against arbitrary authority. The French Declaration of the Rights of Man (1789) and the U.S. Bill of Rights (1791) heavily influenced the framers.
Thinkers like John Locke and Montesquieu (who advocated natural rights and separation of powers) provided intellectual grounding. These global ideas convinced Indian leaders that certain rights must be constitutionally guaranteed.
Freedom Struggle & Demand for Rights:
During the Indian freedom movement, leaders demanded constitutional rights. The Nehru Report (1928) proposed a bill of rights for India.
The Karachi Resolution (1931) of the Indian National Congress explicitly outlined Fundamental rights including socio-economic rights. These early blueprints set the stage for formal rights in the Constitution.
Constituent Assembly Debates: In the Constituent Assembly (1946-49), intense debates shaped Part III.
The Assembly agreed on a set of enforceable rights against the State, but also provided the State leeway to impose restrictions for security, order, etc.
Ambedkar described the Fundamental Rights as “limitations upon authority” empowering citizens to challenge the government in court.
Table of content
Constitutional Protection & Justiciability: Fundamental Rights are guaranteed by the Constitution, making them superior to ordinary laws. If any executive or legislative act infringes these rights, courts can strike it down (judicial review under Article 13). Citizens (and in some cases non-citizens) can directly approach the Supreme Court under Article 32 or High Courts under Article 226 to seek remedies (writs like habeas corpus, mandamus, etc.). This justiciable nature ensures that rights are enforceable, not merely paper promises.
Scope: Citizens and Non-Citizens: Some Fundamental Rights are universal, available to “any person” (citizens or foreigners), whereas others are reserved for citizens of India only. For example, Right to Equality before law (Art 14) and Article 21 (life and liberty) apply to all persons including foreigners. Rights like Article 15 (non-discrimination), Article 16 (equal public employment), Article 19 (six freedoms), Article 29-30 (cultural & educational rights) are explicitly available only to citizens.
Negative and Positive Obligations: Fundamental Rights impose both negative obligations (restraints) on the State and positive obligations (duties). Negative rights forbid the State from doing something - e.g. no arbitrary arrest (Art 22) or no discrimination (Art 15). Positive rights require active steps - e.g. providing free primary education (Art 21A) or ensuring fair trials (Art 21).
Against State Action (Article 12): Fundamental Rights primarily protect individuals from arbitrary state action. Article 12 defines “the State” to include government at all levels - Union, State, local authorities, and bodies under state control. Thus, if any of these violates a person’s rights, the action can be challenged.
Also read Basic Structure Doctrine: Evolution, Meaning, Supreme Court Cases & Significance
India’s Constitution originally guaranteed seven Fundamental Rights. Right to Property (Article 31) was a Fundamental Right until it was removed by the 44th Amendment Act, 1978 - it is now a legal right under Article 300A. Today, there are six Fundamental Rights, each encompassing several provisions:
The Right to Equality ensures that all individuals, irrespective of background, enjoy equal rights and opportunities to develop their skills, talents, and pursue ambitions. It embodies rule of law, social justice, and non-discrimination, forming the cornerstone of Indian democracy.
Article 14 – Equality before Law & Equal Protection of Laws
Guarantees that the State shall not deny equality before law or equal protection of laws within India.
Equality before law: Negative concept – no special privileges; law applies uniformly (drawn from British Constitution).
Equal protection of laws: Positive concept – equal treatment in similar circumstances (from US Constitution).
Implies:
Supremacy of Rule of Law.
Principle of Natural Justice – fairness in legal procedures.
Doctrine of Anti-Arbitrariness – State action must not be arbitrary (E.P. Royappa v. State of Tamil Nadu).
Applies to both civil and criminal law; exceptions exist (e.g., immunity of President/Governors under Art. 361).
Article 15 – Prohibition of Discrimination
Prohibits State from discriminating against citizens on religion, race, caste, sex, place of birth.
Extends to public access: equal entry to shops, restaurants, hotels, wells, tanks, places of public entertainment, roads.
Permits affirmative action:
Special provisions for women & children.
Reservations for socially & educationally backward classes, SCs, STs, OBCs, EWS (103rd Amendment, 2019).
Balances formal equality (non-discrimination) with substantive equality (positive discrimination).
Article 16 – Equality of Opportunity in Public Employment
Ensures equal opportunity for all citizens in state employment and public office.
Prohibits discrimination on religion, race, caste, sex, descent, place of birth, residence.
Allows reservations:
For backward classes inadequately represented.
For EWS (10% quota introduced by 103rd Amendment, 2019).
For residents of a state in certain cases (local employment preferences).
Landmark Case: Indra Sawhney v. Union of India (1992) – upheld OBC reservations; capped total reservations at 50% (except in extraordinary situations).
Article 17 – Abolition of Untouchability
Abolishes untouchability in any form; practice is a punishable offence.
Supported by legislations:
Protection of Civil Rights Act, 1955.
SC/ST (Prevention of Atrocities) Act, 1989.
Article 18 – Abolition of Titles
Prohibits State from conferring titles that create artificial social hierarchies (e.g., Rai Bahadur, Maharaja).
Exceptions: Military and academic distinctions are allowed.
Indian citizens cannot accept foreign titles; foreign citizens holding office in India also cannot accept titles without presidential consent.
Article 19 – Six Fundamental Freedoms
Grants six freedoms to citizens:
Speech & Expression – includes press freedom, online expression; subject to reasonable restrictions (sovereignty, security, decency, contempt of court). Case: Shreya Singhal v. Union of India (2015) struck down Section 66A of IT Act.
Assembly – peaceful, without arms; permits public meetings, processions. Restrictions: sovereignty, public order, morality.
Forming Association/Union/Cooperative Societies – includes trade unions, political parties; restrictions for sovereignty, morality.
Free Movement throughout India – throughout India; restrictions on grounds of public interest or protection of tribal interests.
Freedom to reside and settle in any part of India – anywhere in India; restricted in tribal/protected areas.
Freedom to practice any profession or carry on any occupation, trade, or business – pursue any lawful occupation; State may regulate/monopolise for public interest.
Reasonable Restrictions:
Clauses (2)–(6) empower states to curb rights in interest of sovereignty, integrity, security, friendly foreign relations, decency, morality, etc.
Judiciary ensures restrictions are reasonable & proportionate.
Article 20 – Protection in Respect of Conviction for Offences
Ex post facto law: No retroactive punishment.
Double jeopardy: No person punished twice for the same offense.
Self-incrimination: No compelled testimony against oneself. Protects the right to silence.
Safeguards criminal justice and fairness.
Article 21 – Protection of life and personal liberty
Original text: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Expanded scope (judicial interpretation):
Maneka Gandhi (1978): “Procedure” must be just, fair, reasonable.
Rights under Art. 21: dignity, livelihood, health, shelter, privacy (Puttaswamy, 2017), clean environment, speedy trial, legal aid (Hussainara Khatoon).
Right to Education - Article 21A (86th Amendment, 2002): Free and compulsory education for children (6–14 years). Implemented through RTE Act, 2009.
Article 22 – Protection Against Arrest and Detention in Certain Cases
Rights of arrestees:
Informed of grounds, right to counsel, produced before magistrate in 24 hours.
Prevents arbitrary detention.
Preventive Detention:
Allowed up to 3 months (Parliament can extend).
Advisory Board review mandatory.
Max 12 months under parliamentary law (e.g., NSA, UAPA).
Balances individual liberty vs. state security.
Article 23 – Prohibition of Human Trafficking & Forced Labour
Scope: Prohibits traffic in human beings, begar (forced unpaid labour), bonded labour, and similar practices.
Punishable under law: Any contravention of this provision is an offence.
Exception: Permits compulsory service for public purposes (e.g., military conscription, disaster relief), provided it is non-discriminatory.
Supporting Legislation:
Bonded Labour System (Abolition) Act, 1976 – abolished bonded labour and related debts.
Immoral Traffic (Prevention) Act, 1956 – combats trafficking for prostitution.
Child Labour (Prohibition & Regulation) Act, 1986 (now amended 2016).
Judicial Interpretation: Courts have treated begar broadly – even forcing workers without fair wages qualifies as exploitation (People’s Union for Democratic Rights v. Union of India, 1982).
Article 24 – Prohibition of employment of children in factories
Provision: Forbids employment of children below 14 years in factories, mines, hazardous occupations.
Legislative Support:
Child Labour (Prohibition & Regulation) Amendment Act, 2016 – bans child labour in all occupations, allows work only in family enterprises (non-hazardous) and as child artists (with conditions).
Linked to Right to Education (Art. 21A) – ensures children are in schools, not workplaces.
Objective: To safeguard childhood, health, dignity, and development.
Article 25 – Freedom of conscience and free profession, practice and propagation of religion
Guarantee: Every individual has freedom of conscience and right to profess, practice, propagate religion.
Limitations: Public order, morality, health, and other Fundamental Rights.
State Power: Can regulate or restrict secular aspects of religion (e.g., social reform laws, temple entry).
Judicial View:
Rev. Stanislaus v. State of MP (1977): Right to propagate does not include the right to convert another person forcibly.
Shirur Mutt Case (1954): Defined “essential religious practices,” which courts can protect.
Article 26 – Freedom to manage religious affairs
Religious groups have right to:
Establish & manage institutions for religious/charitable purposes.
Own & acquire property.
Administer property according to law.
Subject to public order, morality, health.
Example: Management of temples and trusts has often come under judicial scrutiny.
Article 27 – Freedom from taxation for the promotion of religion
No citizen can be compelled to pay taxes for promotion/maintenance of a religion.
Reinforces secularism – the State has no religion.
Article 28 – Freedom from attending religious instruction
No religious instruction in state-funded institutions.
Exceptions: institutions established under endowment/trusts requiring such teaching, even if aided by State.
Protects students’ freedom of choice against religious coercion.
Article 29 – Protection of Interests of Minorities
Collective Right: Any section of citizens with distinct language, script, culture has the right to conserve it.
Individual Right: No citizen can be denied admission to state institutions on grounds of religion, race, caste, language.
Ensures cultural pluralism and prevents assimilation pressures.
Article 30 – Right of minorities to establish and administer educational institutions
Religious and linguistic minorities can set up and run educational institutions.
The state cannot discriminate in granting aid.
Landmark Case: T.M.A. Pai Foundation v. State of Karnataka (2002) – clarified rights of minorities to manage institutions but allowed reasonable state regulation.
Protects India’s multicultural fabric and educational autonomy of minorities.
Ambedkar: “Heart & Soul of the Constitution”
Provides direct access to the Supreme Court for enforcement of Fundamental Rights.
Article 32 itself is a Fundamental Right.
Writ Jurisdiction
Courts can issue five writs:
Habeas Corpus – release unlawful detention.
Mandamus – order authority to perform duty.
Prohibition – prevents a lower court from exceeding jurisdiction.
Certiorari – quash illegal orders of lower courts.
Quo Warranto – question legality of holding public office.
Read in detail on Right to Constitutional Remedies: Article 32 of the Indian Constitution
Bulwark of Individual Liberty: Fundamental Rights are the cornerstone of Indian democracy. They safeguard citizens’ freedoms - such as speech, expression, and movement - from undue interference. By limiting state power, they ensure that individuals can act, express, and live with dignity.
Establishing Equality and Justice: These rights seek to eliminate inequalities entrenched in traditional society (caste, gender, religion) by guaranteeing equality before law and prohibiting discrimination. They uphold justice by assuring fair treatment (e.g. equal opportunity, abolition of untouchability).
Strengthening Democracy: Fundamental Rights ensure a free and vibrant democracy. Rights like freedom of speech & association enable citizens to participate in the democratic process - to criticize the government, form political parties or unions, and vote without fear. Free and fair elections, a free press, and active civil society all thrive on the exercise of these rights.
National Unity & Integrity: By assuring all citizens certain basic rights irrespective of their identity, Fundamental Rights promote a feeling of unity. They integrate the nation by assuring minorities of protection (thus reducing alienation) and by forbidding practices that divide society (such as untouchability or communal discrimination).
Check on Arbitrary Power: Perhaps most importantly, Fundamental Rights act as a counter-majoritarian check on the legislature and executive. They prevent a democratic government from turning tyrannical. Courts have struck down numerous laws and actions (press bans, preventive detentions, property seizures) that violated Fundamental Rights.
Not Absolute - Reasonable Restrictions: Every Fundamental Right is subject to reasonable restrictions specified in the Constitution. What is “reasonable” is decided by courts, which examine if the restriction is proportional and least invasive. This framework maintains a balance - rights can be limited for greater social interests, but arbitrariness is checked by judicial review of such limits.
Suspension During Emergency: The Constitution itself permits suspension of certain rights during grave national crises. Under Article 352 (National Emergency), the six freedoms of Article 19 are automatically suspended if an Emergency is declared on grounds of war or external aggression (Article 358). Post-Emergency judicial rulings (like Kesavananda and the 44th Amendment) have ensured stricter safeguards - for instance, now Article 359 orders must be laid before Parliament and cannot cover Article 20-21 rights.
Territorial and Personal Limits:
Fundamental Rights predominantly act against the State within Indian territory. They generally do not cover actions of foreign states or extend beyond India’s borders (e.g. an Indian citizen cannot claim Article 19 rights while abroad). Some rights are available only to citizens (so a foreigner or enemy alien cannot claim those).
Also, rights of individuals can be lawfully restricted for special reasons - e.g. Preventive Detention laws allow curbing someone’s liberty without trial, within defined limits (Article 22). Members of armed forces and police have curtailed rights in interest of discipline (Article 33).
Possible Amendments:
While Fundamental Rights are constitutional, they are not unamendable. Parliament can amend Part III by following the constitutional amendment procedure.
However, after the Kesavananda Bharati judgment, such amendments cannot damage the “basic structure” of the Constitution. Fundamental Rights like judicial review, right to equality, etc., are now considered part of the basic structure and thus have a degree of higher protection.
While Fundamental Rights are sacrosanct, the Constitution and courts have created certain exceptions or special situations where these rights may not apply fully:
Article 33 - Armed Forces: Parliament is empowered to restrict or abrogate the Fundamental Rights of members of the armed forces, police forces, intelligence agencies, etc. as needed to ensure discipline. For example, servicemen may not have the same freedom of speech (to criticize the government) or right to form unions as ordinary citizens.
Martial Law (Article 34): If martial law (military rule in an area due to extreme unrest) is in force in any territory, Parliament may indemnify persons for acts done under martial law. In effect, certain Fundamental Rights (like freedom of movement, protection from arrest) can be temporarily suspended in areas under martial law.
Special Legislation (Articles 31A, 31B, 31C): To implement socio-economic reforms, the Constitution provides that certain laws cannot be challenged for violating Fundamental Rights:
Article 31A: Protects laws related to agrarian reform (e.g. land redistribution, abolition of zamindari) from being struck down on grounds of violating the right to equality or freedom.
Article 31B & Ninth Schedule: Article 31B created the Ninth Schedule, wherein laws placed are immune from judicial review for Fundamental Rights violations. Governments have used this to shield land reform laws and later other legislation by adding them to the Ninth Schedule. However, the Supreme Court in I.R. Coelho vs. Tamil Nadu (2007) ruled that any law added to the Ninth Schedule after 24 April 1973 is open to judicial review if it violates the basic structure (which includes key Fundamental Rights). This means the Ninth Schedule is no blanket protection; post-1973 laws can be invalidated if they abridge core rights unreasonably.
Article 31C: Initially provided that laws implementing certain Directive Principles (Art 39(b) & (c), and originally any DPSP after 42nd Amendment) would be protected even if they violated rights under Article 14 or 19. The Supreme Court in Kesavananda (1973) struck down the part giving blanket immunity beyond Art 39(b),(c).
Ninth Schedule Laws: (Related to Article 31B) As an exception, certain laws - especially land reform and reservation policies - were placed in the Ninth Schedule to oust Fundamental Rights challenges.
Constitutional Amendments: It was earlier believed that constitutional amendments were not “law” under Article 13, hence could contravene Fundamental Rights. This changed with Kesavananda Bharati (1973) - now any amendment that damages or destroys Fundamental Rights as part of basic structure can be struck down.
Prelims
Q. Consider the following pairs: (UPSC Prelims 2025)
Provision | Stated under |
Separation of Judiciary from the Executive in the public services of the State | Directive Principles of State Policy |
Valuing and preserving the rich heritage of our composite culture | Fundamental Duties |
Prohibition of employment of children below the age of 14 years in factories | Fundamental Rights |
How many of the above pairs are correctly matched?
a) Only one
b) Only two
c) All the three
d) None
Answer: (c)
Q. A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of the application of law violates which one of the following Articles of the Constitution of India? (UPSC Prelims 2021)
(a) Article 14
(b) Article 28
(c) Article 32
(d) Article 44
Answer: (a)
Q. Which one of the following categories of ‘Fundamental Rights incorporated against untouchability as a form of discrimination? (UPSC Prelims 2020)
Right against Exploitation
Right to Freedom
Right to Constitutional Remedies
Right to Equality
Answer: (d)
Mains
Q. Examine the scope of Fundamental Rights in light of the latest judgement of the Supreme Court on the Right to Privacy. (UPSC Mains 2017
Q. What do you understand about the concept of “freedom of speech and expression”? Does it cover hate speech also? Why do films in India stand on a slightly different plane from other forms of expression? Discuss (UPSC Mains 2014)
FAQ's
Q. Can Fundamental Rights be removed?
A. In the Kesavananda Bharati Case, the Supreme Court ruled that while all provisions of the Constitution, including fundamental rights, can be amended, parliament cannot change the basic structure of the Constitution.
Q. Can the state government amend Fundamental Rights?
A. No, only parliament can amend the fundamental rights. Amendments to fundamental rights can only be implemented by introducing a Constitutional Amendment Bill.
Q. Which part of the Constitution contains Fundamental Rights?
A. Articles 12-35 in Part III of the Indian constitution contain the fundamental rights. These human rights are granted to Indian citizens because the Constitution states that they are inviolable.
Q. What are the six Fundamental rights?
A. The six Fundamental rights are: Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, and Right to Constitutional Remedies. (These cover Articles 14 to 18, 19 to 22, 23-24, 25-28, 29-30, and 32 respectively.)
Q. What are the exceptions to Fundamental rights?
A. Certain situations limit Fundamental rights - for example, National Emergency can suspend some rights (except Articles 20-21), Article 33 allows restricting rights of armed forces, and laws in the Ninth Schedule (Article 31B) are shielded from rights challenges (though post-1973 laws here can be reviewed by courts).
Conclusion
Fundamental Rights are the foundation of India’s democracy, reflecting the country’s promise of liberty, equality, and justice while empowering citizens as the “conscience of the Constitution.” By guaranteeing freedoms such as speech, religion, and equality, they allow India’s diverse population to participate fully in public life. These rights gain meaning only when exercised and defended by citizens, who must also fulfill their Fundamental duties for a strong nation. Together, Rights and Duties create responsible citizens and safeguard democracy by checking government power and enabling social change through progressive court rulings. Ultimately, Fundamental Rights are both the soul and shield of the Constitution, guiding India to remain a true democracy for all its people.
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